Appendix — Rodriguez v. National Center Center for Missing & Exploited Children (No. 05-1059)

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published. The Clerk is directed to withhold issuance of the

mandate in Appeal No. 05-5202, the direct appeal, until

seven days after resolution of any timely petition for

rehearing.” See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /S,

John T. Haley

Deputy Clerk

*Chief Judge Michel is « judge of the United States Court of

Appeals for the Federal Circuit, sifting by designation

pursuant to 28 U.S.C. § 291(a).

**Chief Judge Restani is a judge of the United States Court

of International Trade, sifting by designation pursuant to 28

U.S.C. § 293(a).

***Senior District Judge Stafford is a judge of the United

States District Court for the Northern District of Florida,

sitting by designation pursuant to 28 U.S.C. § 292(d).

As No. 05-5130 is an original action filed in the United

States Court of Appeals for the District of Columbia Circuit, no

mandate will issue

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No. 05-51 30, et. al., In re Rodriguez

MEMORANDUM

I. BACKGROUND

Isidoro Rodriguez (“Rodriguez”) brought suit in the United

States District Court for the District of Columbia on behalf

of himself and his minor son, Isidoro Rodriguez- Hazbun

(“Isidoro”}, against the National Center for Missing and

Exploited Children, et. al.,° alleging that the defendants

conspired to deprive him of his constitutional rights under

the First, Fifth, and Ninth Amendments and civil rights

under 42 U.S.C. §§ 1985(3) and 1986 (2000) and are also

liable under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 2671-2680 (2000). Among other relief, he sought

money damages, costs, and attorneys’ fees. He also

petitioned for a writ of mandamus to “keep [Isidoro safe

while in Colombia, assure access and unhindered

communication with Isidoro, and to seek pursuant to

The defendants named in Rodriguez's original complaint

include: the National Center for Missing and Exploited Children,

Ernie Allen, Nancy Hammer, Guillermo Galarza, Proskauer Rose

LLP, Warren L. Dennis, Susan Brinkerhoff, Miles & Stockbridge

LLP, Stephen J. Cullen, Patrick H. Stiehm, Mary B. Marshall,

Robert McCannell, Knute E. Malmborg, and John Does 1-20, in

their individual capacity, the Office of Children Issues, the

Office of Legal Adviser for Consular Affairs, U.S. Department of

State, an unknown number of unnamed and unknown

employees of the United States, in their official and individual

capacities, the United States Department of State, and the

United States of America. For simplicity, the named defendants

are categorized herein as either “federal defendants” or “private

defendants.” Collectively, however, they are referred to as

simply “defendants.”

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Isidoro’s wishes and rights his immediate return to the

United States.” Compl. at p. 38. During the pendency of his

case, Rodriguez filed an amended complaint, adding

numerous additional defendants, including every court and

the majority of judges who had ruled on his previous

federal and state filings. He likewise moved to disqualify

Judge Richard W. Roberts, the district judge assigned to his

case, pursuant to 28 U.S.C. § 455 (2000).

The district court granted the defendants’ motion to dismiss

the original complaint under Federal Rule of Civil

Procedure 12(b) for lack of subject matter jurisdiction and

for failure to state a claim upon which relief may be

granted. Rodriguez v. Nat’ Ctr. for Missing & Exploited

Children. et. al., No. 03-120, slip op. at 13 (D.D.C. Mar. 31,

2005). First, as to Rodriguez’s constitutional claim, the

district court held that the federal defendants are immune

from suit based upon the doctrine of sovereign immunity.

Id. at 19-20. It also held that the private defendants are not

proper defendants under the Constitution, citing Bivens v.

Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971). Id. at 21-25.

Second, the district court found that the United States did

not waive its sovereign immunity for Rodriguez’s tort claim.

id. at 31. It also observed that of all of the torts he alleged,

Rodriguez presented only a claim for intentional infliction

of emotional distress (“IIED”)at the agency level, a

prerequisite for litigating a tort claim under the FTCA. Id.

at 32. The district court thus limited its consideration of

Rodriguez’s tort claim to this one cause of action and held

that he failed to allege any facts showing outrageous

conduct on the part of the remaining defendants, an

essential element of an ITED claim. Id. at 34-35.

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Third, the district court held that Rodriguez’s civil rights

claims against the federal defendants are barred by the

doctrine of sovereign immunity. Id. at 36. As to the private

defendants, the district court held that Rodriguez did not

allege facts sufficient to show that the private defendants

conspired to violate either Rodriguez’s or Isidoro’s civil

rights based on a discriminatory animus directed at U.S

Hispanic males. Id. at 37-39.

Finally, since the United States District Court for the

Eastern District of Virginia had issued an order requiring

that Isidoro return to Colombia, the district court found that

Rodriguez failed to show a “clear and indisputable” right to

a writ of mandamus. Id. at 39. It likewise concluded that

both Rodriguez’s motion to disqualify and his amended

complaint were “nothing more than a transparent attempt

at judge-shopping and forum-shopping.” Id. at 42

Consequently, the district court denied both the petition foi

writ of mandamus and the motion to disqualify and struck

Rodriguez’s amended complaint.

Because the origina! complaint was dismissed under Rule

12(b), the district court entered final judgment, dismissing

the entire action. On May 23, 2005, Rodriguez timely

appealed.

Il. DISCUSSION

The appellees argue that summary affirmance is appropriate

because the district court correctly held that even accepting

Rodriguez's well-plead allegations as true, they did not

engage in a conspiracy to deprive Rodriguez and Isidoro of

their constitutional or civil rights or to commit a tortious act

against either of them. Rodriguez responds by asserting that

summary affirmance must be denied because “the ongoing

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deprivation of {Rodriguez’s and Isidoro’s rights to impartial

access to both federal and Virginia courts to seek redress of

the ongoing obstruction with Rodriguez’s substantive

parental rights” violates the constitution and federal statute.

Resp. for Appellees at 9. As Rodriguez and Isidoro have had

ample access to the courts, Rodriguez’s argument is

unresponsive to the motion for summary affirmance. On the

merits, he appears to assert that he and his son are being

wronged, rather than why the trial court’s dismissal or any

other ruling constitutes reversible error.

A.

We conclude that the district court correctly found that the

United States, its agencies, and officials are immune from

suit under the doctrine of sovereign immunity as to

Rodriguez’s constitutional, tort, and civil rights claims. See

United States v. Testan, 424 U.S. 392, 399 (1976). Here,

Congress did not waive the United States’s sovereign

immunity with respect to Rodriguez’s constitutional claim.

See Clark v. Library of Congress, 750 F.2d 89, 103 n.31,

104 (D.C. Cir. 1984). Nor did Congress waive the United

States’s sovereign immunity with respect to Rodriguez’s tort

claim, see FDIC v. Meyer, 510 U.S. 471, 477-78 (1994), or

his statutory civil rights claims, see Hohri v. United States,

782 F.2d 227, 245 (D.C. Cir. 1986). Consequently, the

district court properly dismissed all Rodriguez's claims

against the federal defendants for lack of subject matter

jurisdiction.

B.

As to the private defendants, we address each cause of

action in turn, beginning with Rodriguez’s allegation of a

civil conspiracy to violate Rodriguez’s and Isidoro’s

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constitutional rights. We agree with the district court that

the private defendants cannot be Viable for such a

conspiracy because they were not acti 2 under the color of

law. See Browning v. Clinton, 292 F.3d 235, 250 (D.C. Cir.

2002) (“Critical to a successful Bivens claim, of course, [the

defendants} must have acted ‘under color of [federal]

authority.” (quoting Bivens, 403 U.S. 388, 389 (1971)

(alteration in original))). Rather, the private defendants

acted as private entities. Indeed, Rodriguez's complaint, as

the district court noted, does not even allege that any of the

private defendants acted under color of law. As such,

Rodriguez’s constitutional claim against the private

defendants was correctly dismissed by the district court for

lack of subject matter jurisdiction.

With respect to Rodriguez’s tort claim, he particularly

alleges that the private defendants violated Isidoro’s and his

rights to the “society and companionship in the father/son

relationship, access to the courts of the Commonwealth of

Virginia, consticute an illegal shanghaiing of Isidoro from

the United States, negligent supervision, intentional

infliction of emotional distress, violation of freedom to

petition the government, falsification of official documents,

and an invasion of privacy.” Compl. 4141. Of these claims,

the district court correctly noted that Rodriguez, pursuant

to 28 U.S.C. § 2675(a) (2000), only presented his claim for

intentional infliction of emotional distress to the United

States Department of State, the appropriate administrative

agency. See Compl. 4 142. His claim was denied in 2002,

thus allowing the present tort claim. The district court also

correctly found that Rodriguez's original complaint was

devoid of any factual allegations reflecting egregious

conduct, let alone outrageous or atrocious conduct, on the

part of the private defendants. See Brownino, 292 F.3d at

248 (The tort of intentional infliction of emotional

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distress“requires conduct so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.”) (quotations and

citations omitted). We thus conclude that the district court

properly dismissed Rodriguez’s tort claim for failure to state

a claim.

Finally, we conclude that the district court properly

dismissed Rodriguez’s civil rights claims against the private

defendants for failure to state a claim. To prove a

conspiracy in violation of § 1985(3), a plaintiff must show,

inter alia that “some racial, or perhaps otherwise

class-based, invidiously discriminatory animus [lay] behind

the conspirators’ action.” Bray v. Alexandria Women’s

Health Clinic, 506 U.S. 263, 268 (1993) (citations and

quotations omitted). Here, even under the most liberal

interpretation of the original complaint, Rodriguez did not

allege any facts, which if true, would show that the private

defendants conspired against either Rodriguez or Isidoro

because they are Hispanic males living in the United States.

In his original complaint, Rodriguez merely alleges:

“Defendants conspired against Plaintiffs . . . based on

invidious discriminatory animus against Rodriguez and

Isidoro as U.S. citizens Hispanic men.” Compl. 4 145. This

allegation is merely a bald assertion; it plainly fails to

connect the private defendants’ alleged actions against

Rodriguez and Isidoro with the latters’ status as U.S.

Hispanic males. Moreover, since a colorable claim under §

1985 is a prerequisite to a claim under § 1986, Mollnow v.

Carlton, 716 F.2d 627, 632 (9th Cir. 1983), the district

court properly dismissed Rodriguez’s derivative § 1986

claim.

C.

The district court correctly denied Rodriguez's petition for

a writ of mandamus. Pursuant to the Mandamus Act, 28

U.S.C. § 1361 (2000), a district court may grant mandamus

relief if “(1) the plaintiff has a clear right to relief; (2) the

defendant has a clear duty to act; and (3) there is no other

adequate remedy available to the plaintiff.” Power _v.

Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (quoting N.

States Power Co. v. Dep’t. of Energy, 128 F.3d 754, 758

(D.C. Cir. 1997)). Rodriguez cannot show a clear right to

relief under any of the facts alleged in his complaint or

reasonable inferences to be drawn therefrom. See Kerr v.

U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 402

(1976) (citations and quotations omitted). On the contrary,

as the district court noted, Isidoro presently resides in

Colombia with his mother as a result of the order of the

Eastern District of Virginia. See Hazbun Escaf v. Rodriguez,

200 F. Supp. 2d 603 (E.D. Va. 2002), affirmed, Hazbun

Escaf v. Rodriguez, 52 Fed. Appx. 207 (4th Cir. 2002).

Rodriguez and Isidoro have had the opportunity to fully

adjudicate the merits of their child custody dispute in court;

they simply are dissatisfied and disagree with the result.

Accordingly, the district court was correct in holding that

Rodriguez could not show a clear and indisputable right to

a writ of mandamus.

D.

The district court did not abuse its discretion when it

denied Rodriguez’s motion to disqualify the district judge or

when it struck his amended complaint. As the district court

noted, Rodriguez's amended complaint murrored his

original complaint with the addition only of new

governmental defendants, including the United States

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District Court for the District of Columbia and Judge

Roberts, and new conspiracy-based causes of action.

Notably, Rodriguez made his filings after the defendants

filed a motion to dismiss the original complaint and after

Judge Roberts declined to recuse himself from the case. In

light of the chronology of events, we can only infer that

Rodriguez sought to delay any decision on the defendants’

motion to dismiss. We thus agree with the district court that

Rodriguez’s motion and his amended complaint reflect an

improper attempt to forum-shop and judge-shop.

Ill. CONCLUSION

Accordingly, for the reasons set forth herein, the district

court’s judgment of dismissal is summarily affirmed.

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United States Court of Appeals Of for the District of

Columbia Circuit

No-05-5130

Dated: August 1, 2005

In re lsidoro Rodriguez, Esq., and as Father and next of

friend of his 16 year old son Isidoro Rodriguez-Hazbun, and

Isidoro Rodriguez-Hazbun,

Petitioners

05-5202

Isidoro Rodriguez, Esq., Father Isidoro Rodriguez-Hazbun,

a minor and Isidoro Rodriguez-Hazbun,

Appellants

V.

National Center for Missing & Exploited Children, et al.,

Appellees

ORDER

It is ORDERED, on the court’s own motion, that the

above cases be consolidated.

For the Court

Mark J. Lagger, Clerk

By s/

Linda Jones

Deputy Clerk

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UNITED STATES DISTRICT COURT FOR THE DISTRICT

OF COLUMBIA

ISIDORO RODRIGUEZ, er al.,

Plaintiffs, : Civil Action

: No 03-CV-00120

v. : (RWR)

THE NATIONAL CENTER FOR

MISSING & EXPLOITED

CHILDREN, et al.,

Defendants.

ORDER

For the reasons set forth in the accompanying

Memorandum Opinion, it is hereby

ORDERED that defendants’ motion to dismiss [63,

65] be, and hereby are, GRANTED. The complaint is

DISMISSED. It is further

ORDERED that the plaintifts’ motion for writ of

mandamus [47] be, and hereby is, DENIED. It is further

ORDERED that plaintiffs’ motions to disqualify

[128, 132] ve, and hereby are, DENIED, and the

amended complaint is STRICKEN., It is further

ORDERED that all remaining motions [120, 121,

130, 133] be and hereby are, DENIED as moot.

This is a final, appealable order

SIGNED this 21“ day of March, 2005.

/S/

RICHARD ROBERTS

United States District Judge

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ISIDORO RODRIGUEZ, et al.,

Plaintiffs, : Civil Action

: No 03-CV-00120

V. : (RWR)

THE NATIONAL CENTER FOR

MISSING & EXPLOITED

CHILDREN, et al.,

Defendants.

MEMORANDUM OPINION

Isidoro Rodriguez ("Rodriguez") brought this lawsuit

on behalf of himself and his minor son, Isidoro Rodriguez-

Hazbun ("Isidoro") against a number of individuals, organi-

zations, and agencies, alleging that these defendants

conspired to deprive him of his constitutional rights and

committed violations of the Federal Tort Claims Act.

Plaintiffs also petition for a writ of mandamus directing the

Department of State to keep Isidoro safe in Colombia,

assure Rodrigi ez access to Isidoro, and seek Isidoro's return

to the United States. The federal defendants have moved

for dismissal of the complaint under Rules 12 (b) (1), (2),

(4), (5), and (6) of the Federal Rules of Civil Procedure,

alleging lack of subject matter and personal jurisdiction,

insufficient process and service, and failure to state a claim,

respectively. ‘The private defendants have moved for

dismissal pursuant to Rules 12 (b) (1) and 12 (b) (6).

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In Counts One and Two, plaintiffs allege constitu-

tional violations under the First, Fifth, and Ninth Amend-

ments. Because plaintiffs have failed to serve process on

the federal individual defendants in their individual capaci-

ties, and because these individuals are entitled to sovereign

immunity from suits for money damages against them in

their official capacities, the constitutional claims against

these individuals will be dismissed. Because the federal

organizations have sovereign immunity from suits for

money damages, the constitutional claims will also be

dismissed as to these defendants. Because the private

organizations and some of the private individuals are not

proper defendants under Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),

the constitutional claims will be dismissed as to them. For

the remaining individual private defendants, the constitu-

tional claims will be dismissed as to them because, even if

they are proper Bivens defendants, plaintiffs have not stated

a claim against those defendants that would withstand

qualified immunity.

In Count Three, plaintiffs allege a number of

violations of the Federal Tort Claims Act. Because the

United States has not waived sovereign immunity with

respect to constitutional torts, because plaintiffs failed to

present certain of their alleged non-constitutional tort

violations at the agency level, and because, with regard to

the alleged tort violation they did present at the agency

level, they fail to state a claim upon which relief can be

granted, plaintiffs’ claims under the Federal Tort Claims Act

must be dismissed.

In Count Four, plaintiffs allege, pursuant to 42

U.S.C. §§ 1985(3) and 1986, the existence of a conspiracy

to violate their constitutional rights. Because plaintiffs fail

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to sufficiently state a claim that any alleged conspiracy was

based on racial or other class-based animus, plaintiffs’

claims under these statutes will be dismissed.

Because plaintiffs have failed to show that their

right to a writ of mandamus, which they seek in Count live

and in a separately filed motion, is clear and indisputable,

the request to issue a writ of mandamus will be denied.

Finally, plaintiffs filed a motion to disqualify me,

pursuant to 28 U.S.C. § 455 (b) (5) (I) , along with an

amended complaint adding me, among others, as a defen-

dant. Because plaintiffs’ motion and amended complaint

are merely a transparent attempt at judge-shopping and

forum-shopping, the motion to disqualify will be denied and

the amended complaint will be stricken in its entirety.

BACKGROUND

I. PLAINTIFFS AND PREVIOUS LAWSUITS

According to the facts alleged in the complaint,

Rodriguez is an attorney admitted to the bar in Virginia

who traveled to and resided in Colombia between 1987 and

1999. (Compl. at 28, 30.) He fathered a child, Isidoro, in

1989. (Compl. at 31.) Rodriguez subsequently returned to

live in the United States in 1999. (Compl. at 34.) Isidoro

and his mother, Amalin Hazbun Escaf ("Hazbun"), remained

in Colombia. After Rodriguez moved to Virginia, Hazbun

and Rodriguez agreed to have Isidoro visit his father in the

United States on several occasions. Hazbun Escaf_v.

Rodriguez, 200 F. Supp. 2d 603, 607 (E.D. Va. 2002), aff'd,

Escaf v. Rodriguez, No. 02-487, 52 Fed. Appx. 207, 2002

WL 31760202 (4th Cir. Dec. 11, 2002), cert, denied, 538

U.S. 1000 (2003). Rodriguez claims that he had a right of

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"visitation and right of access to Isidoro" based on a verbal

divided custody agreement and written joint custody

agreement he entered with Hazbun. (PI.'s Omnibus Resp.

at 4.)

Isidoro's third trip to visit Rodriguez in Virginia

occurred during the months of June and July, 2001.

Hazbun Escaf, 200 F. Supp. 2d at 607. On July 13, 2001,

the day before Isidoro's scheduled return to Colombia,

Rodriguez informed Hazbun that Isidoro would be remain-

ing in the United States. Id. On the same day, Rodriguez

filed a petition to modify the custody agreement between

himself and Hazbun in the Juvenile and Domestic Relations

Court of Fairfax County, Virginia. (Compl. Ex. 3a.) On August

15, 2001, Hazbun filed a Hague Convention Return Applica-

tion with the Colombian Civil Authority, seeking Isidoro's

return to Colombia under the Hague Convention on the Civil

Aspects of International Child Abduction Act. Hazbun Escaf,

200 F. Supp. 2d at 607. Subsequently, on December 20, 2001,

Hazbun filed a suit in the United States District Court for the

Eastern District of Virginia seeking the return of Isidoro to

Colombia under the Hague Convention, as implemented in the

United States by the International Child Abduction Remedies

Act (ICARA"), 42 U.S.C. § 11601-11610. See Hazbun Escaf,

200 F. Supp. 2d at 608. Rodriguez alleges that the defendants

"conspired to file [the Hague Convention action], seeking and

causing the expeditious shanghaiing of Isidoro against his

wishes. . . fron: the United States to Colombia." (Compl. SI

38.)

On May 6, 2002, United States District Judge T.S. Ellis,

III, of the Eastern District of Virginia issued a memorandum

opinion holding that Rodriguez's retention of Isidoro in the

United States violated Hazbun's custody rights, that Isidoro

was not in grave risk of harm, that Isidoro's stated desire to

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remain in the United States did not bar his return to Colombia,

and that ICARA and the Hague Convention required Isidoro's

return to Colombia. See Hazbun Escaf v. Rediiguez, 200 F.

Supp. 2d 603 (E.D. Va. 2002). On December '1, 2002, the

United States Court of Appeals for the Fourth Circuit affirmed

the district court's ruling and also concluded that "the proceed-

ings in district court did not violate either Rodriguez's or

Isidoro’s rights.” Escaf v. Rodriguez, No. 02-487, 52 Fed. Appx.

207, 2002 WL31760202 (4th Cir. Dec. 11, 2002), cert, denied,

538 U.S. 1000 (2003).

Rodriguez subsequently filed the instant action alleging

that various defendants conspired to deprive him and his son

of their constitutional rights. Il. FEDERAL DEFENDANTS

With regard to the following federal defendants,

plaintiffs allege that each “ha[s] and continues to engage in

a custom, policy, or practice of disregarding and thereby

violating the fundamental rights of United States citizens

vis-a-vis their application and administration of the [Hague]

Convention." (Compl. SIS! 58, 77, 103.) Plaintiffs also

claim generally that "Defendants employees and agents

intentionally conspired to deprive Rodriguez and Isidoro to

their rights to equal protection and due process in whole or

in part because of their being Hispanic." (Compl. SIS! 59,

78, 104.)

A. United States Department of State, The Office of

Children's Issues, Bureau of Consular Affairs

Plaintiffs allege that defendants Office of Children's

Issues, Bureau of Consular Affairs, and the U.S. Department

of State are the entities responsible for the administration

of the Hague Convention and ICARA. (Corapl. SI 46.) The only

specific act he alleges that these entities engaged in was

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“assist{ing] in the filing" of Hazbun's Convention action on

December 20, 2001. (Compl SI 74.)

B. Mary B. Marshall

Defendant Mary B. Marshall, whom plaintiffs sue in

her individual and official capacities, is an employee and

director of the Office of Children's Issues of the United

States Department of State. (Compl. 23.) Plaintiffs appear

to allege that Marshall "assisted in filing" Hazbun's Hague

Convention action. (Compl. SI 74.) Plaintiffs also allege

that Marshall sent letters to Fairfax Family Court on

January 3, 2002 and to Judge Ellis on March 15, 2002.

(Compl. SI 75.) They claim that these letters violated 42

U.S.C. §§ 11603-11604 "by negligently seeking to circum-

vent" Rodriguez's family court action and by concealing

information regarding Colombia. (Id.) Finally, plaintiffs

claim that Marshall acted negligently by improperly autho-

rizing the alleged conspiracy, allowing interference in

Rodriguez's family court action, failing to train and properly

supervise employees, and failing to assure access and

communication between Rodriguez and Isidoro. (See

Compl. SI 123.)

C. Robert McCannell, Knute E. Malmborg, Office of Legal

Adviser for Consular Affairs

Plaintiffs allege that Robert McCannell is the

Executive Director of the Office of Legal Adviser for Con

sular Affairs. (Compl. SI 24.) Plaintiffs allege that Knute E.

Malmborg is an attorney adviser at the Office of Legal

Adviser for Consular Affairs. (Compl. 1 25.) Plaintiffs sue

McCannell and Malmborg in their individual and official

capacities. Plaintiffs also name the Office of Legal Adviser

for Consular Affairs, of the U.S. Department of State, as a

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defendant. (Compl. SI 21.) The only specific factual

allegations made with regard to these defendants are that

McCannell and Malmborg responded to Rodriguez's alleged

FOIA request "only in response to express concerns" of the

Fairfax Family Court, released to Rodriguez Hazbun's

Hague Convention application only in Spanish, and "in

violation of Rodriguez's right to petition the government.,.

. . refused to meet with Rodriguez." (Compl. SIS! 98-100,

102.) Rodriguez also asserts, apparently on the basis of the

above alleged facts, that these defendants “conspired to

conceal documents and provide falsely dated official

documents." (Compl. S1101.) Finally, plaintiffs claim that

McCannell and Malmborg acted negligently by improperly

authorizing the alleged conspiracy, allowing interference in

Rodriguez's family court action, failing to train and properly

supervise employees, and failing to assure access and

communication between Rodriguez and Isidoro. (See Compl.

SI 123.)

II]. PRIVATE DEFENDANTS

With regard to the following private defendants, plaintiffs

allege that each “ha[{s] and continues to engage in a custom,

policy, or practice [of disregarding] and thereby violating the

fundamental rights of United States citizens vis-a-vis their

application and administration of the [Hague] Convention.”

(Compl. SI 69; see Compl. SIS! 84, 96, 116.) Plaintiffs also claim

generally that these defendants, or their employees and agents,

"intentionally conspired to deprive Rodriguez and Isidoro to their

rights to equal protection and due process in whole or in part

because of their being Hispanic.” (Compl. SIS! 70, 97, 117; see

Compl. SI 85. )

A. National Center for Missing and Exploited Children, Guillenno

Galarza, Nancy Hammer, Emie Alien

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The National Center for Missing and Exploited Children

("NCMEC’) is a nonprofit corporation which plaintiff alleges acts

as an instrumentality or agency of the United States. (Compl. SI

10.) Defendants Guillermo Galarza and Nancy Hammer are

employees of the NCMEC. (Compl. 1 12, 13.) Plaintiffs allege

that "[u]pon information and belief during the months of

August and September 2001. . . Galarza, and other unnamed

and unknown employees of Defendant NCMEC began conspir-

ing to act as fiduciary and/or attorneys for Hazbun."

(Compl. SI 64.) Specifically, plaintiffs appear to claim that

Galarza, on or about August 6, 2001, left a telephone message

with Hazbun and Isidoro regarding Hazbun seeking the return

of Isidoro to Colombia. (Compl. ] 61.) Additionally, Galarza

and other unknown employees of NCMEC sent e-mails and

telefaxes "advising and exerting influence on the Colombian

Central Authority to quickly submit the Convention applica-

tion" in an attempt to stop the suit in the Fairfax Family Court

“and to restrict consideration under the more limited review of

the Convention in the Federal Court. . .." (Compl. 1 65.)

Plaintiffs also appear to allege that the NCMEC took

some unspecified action that resulted in Hazbun's application

"falsely alleg{ing] that Rodriguez had retained Isidoro against

his will, and failed to advise of the dangers of the “zone of war’

throughowt Colembia" and that the NCMEC, Malmborg and

McConnell #/ssfied a document, apparently a supplement to

Hazbun's Ceswention application. (See Compl. 66, 68.)

Plaintiffs alse claim that these defendants rejected Rodriguez's

request to meet with them. (Compl. SI 67.) Finally, plaintiffs

contend that NCMEC employees and unnamed individuals

"talked with and sat behind Hazbun[] expressing obvious

support to the Court of her action. . ..". (Compl. SI 107.)

Plaintiffs name Emie Alien, President and Chief

Executive Officer of the NCMEC, as a defendant, but do not

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allege any specific facts with regard to him. (See Compl. SI

11.) Plaintiffs only state that Alien, along with Hammer and

Galarza, acted negligently by improperly authorizing the

alleged conspiracy, allowing interference in Rodriguez's family

court action, failing to train and properly supervise employees,

and failing to assure access and communication between

Rodriguez and Isidoro. (See Compl. SI 123.)

B. Patrick H. Stiehm

Defendant Patrick Stiehm is an attorney who provides

volunteer legal services for the NCMEC. (Compl. SI 19.)

Plaintiff specifically alleges that Stiehm made statements in

open court at a Fairfax Family Court status hearing that he

was there on behalf of NCMEC and would be filing a com-

plaint in federal court to enforce the Hague Convention.

(Compl. SI 80.) Plaintiffs also claim that Stiehm filed the

federal district court action to enforce the Convention “as part

of a conspiracy with NCMEC to develop a legal strategy based

on sophistry and to use every ~ gaming’ and sharp attorney

practice to block and assume away the arguinents presented

regarding Isidoro and Rodriguez's fundamental rights. . . as

well as to prevent information being placed into the court

record regarding the dangerous situation in Colombia for U.S.

citizens.” (Compl. SI 83.) Finally, plaintiffs claim that Stiehm

"filed various motions with both the Fourth Circuit and the

District Court, to seek the immediate arrest of Isidoro by law

enforcement. . .." (Compl. SI 110.)

C. Proskauer Rose, LLP; Warren L. Dennis; Susan Brinkerhott

These defendants are outside legal counsel for the

NCMEC. (Compl. SI 86.) Plaintiffs generally assert that these

defendants "intentionally conspired to develop a legal strategy.

.. to block and prevent information" from being placed on the

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court record regarding the dangerous situation in Colombia,

and conspired with the NCMEC to avoid his family court suit.

(Comp. 87,92). They appear to claim thai specific acts that

are evidence of the conspiracy are that Dennis and Proskauer

Rose wrote a letter to Rodriguez making “false, defamatory,

and libelous statements" regarding Rodriguez's attempts to

meet with various other defendants; that Dennis wrote a letter

to Rodriguez that did not address a notice Rodriguez sent to

NCMEC regarding the alleged violations of his constitutional

rights and his request for a meeting; that Dennis, Brinkerhoff,

and Proskauer Rose referred to Rodriguez's family court

action, in some unspecified forum or document, as "Lad was

petitioning for custody of the minor child,’ so to obfuscate

consideration" of plaintiffs' fundamental rights; and that they

in some manner “assisted Defendant Stiehm in the conspiracy

to file" the action in federal district court. (Compi. ]7 88, 90,

93, 94.)

D. Miles & Stockbridge, Stephen John Cullen

Plaintiffs allege that defendant Miles & Stockbridge,

LLP is a law partnership, that defendant Stephen Cullen is an

attorney with Miles & Stockbridge, and that each provides

volunteer legal services for the NCMEC. (Compl. 1! 17-18.)

Plaintiffs claim that "throughout the Federal Convention

Action, in furtherance of the conspiracy to apply the legal

sophistry that the Convention effectively amend the fundamen-

tal rights of Rodriguez and Isidoro under the Constitution,

Defendants. . . intentionally conspired with Defendant

NCMEC." (Compl. SI 106.) Specifically, plainuffs allege that

these defendants entered a pro hac vice appearance on behalf

of Hazbun on April 10, 2002, that Cullen made a statement in

open court regarding plaintiffs’ fundamental rights, that Cullen

received a volunteer of the year award from the NCMEC, and

that these defendants filed various motions with the Fourth

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Circuit and the district court. (Compl. 11 105, 108, 109, 110.)

Before a court may address the merits of a complaint,

it must assure that it has jurisdiction to entertain the claims.

See Scott v. England, 264 F. Supp. 2d 5, 8 (D.D.C. 2002)

(citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-

95 (1998)). Under Federal Rule of Civil Procedure 12 (b) (1),

a defendant may move to dismiss a claim based on the court's

lack of jurisdiction over the subject matter, and the plaintiff

bears the burden of establishing that the court has subject

matter jurisdiction. See Forrester v. United States Parole

Comm'n, 310 F. Supp. 2d 162, 167 (D.D.C. 2004); see also

McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189

(1936) (noting that the plaintiff “must carry throughout the

litigation the burden of showing that he is properly in the

court"). Because subject matter jurisdiction focuses on the

court's authority to hear the claim, a court must "conduct a

careful inquiry and make a conclusive determination whether

it has subject matter jurisdiction or not,” 5A Charles A. Wright

& Arthur R. Miller, Federal Practice & Procedure: Civil 2d §

1350 (1990), by examining the complaint and, “where

necessary, ... [by] consider[{ing) the complaint supplemented

by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court's resolution

of disputed facts." Coalition for Underground Expansion v.

Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation

omittec ) . If a defendant facially challenges the basis for subject

matter jurisdiction, the plaintiffs’ factual allegations are assumed

to be true, though a defendant's challenge to the jurisdictional

facts requires a resolution of those disputed facts. See Wright &

Miller, supra, § 1350; see also Artis v. Greenspan, 223 F. Supp. 2d

149, 154 (D.D.C. 2002). If the jurisdictional ground pled in the

complaint is “insufficient or entirely lacking but there are facts

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pleaded in the complaint from which jurisdiction may be inferred,

then the [Rule 12 (b) (1)] motion must be denied.” Minebea Co.,

Ltd, v. Papst, 13 F. Supp. 2d 35, 38 n.2 (D.D.C. 1998) (quoting

Wright & Miller, supra § 1350) .

A motion to dismiss for failure to state a claim upon which

relief may be granted under Federal Rule of Civil Procedure

12(b)(6) should be granted only where it appears that there is no

set of facts in support of the claims which would entitle a plaintiff

to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "To

that end, the complaint is construed liberally in the plaintiffs

favor, and . . . plaintiff{] [receives] the benefit of all inferences

that can be derived from the facts alleged." Kowal v. MCI

Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) .

"However, the court need not accept inferences drawn by plaintiff

if such inferences are unsupported by the facts set out in the

complaint. Nor must the court accept legal conclusions cast in

the form of factual allegations.” Id. Thus, if plaintiff fails

to allege sufficient facts to support a claim, that claim must

be dismissed.

I. CONSTITUTIONAL CLAIMS

In Counts One and Two, Rodriguez charges that

each of the defendants conspired to deprive him and his son

of their rights to due process, equal protection, and access

to the courts, and their right te petition the government

under the First, Fifth, and Ninth Amendments. The grava-

men of the complaint is that the defendants took actions in

furtherance of an alleged cons;¢racy which allegedly

resulted in the frustration of his custody suit in Juvenile and

Jomestic Court in Virginia. Specifically, plaintiffs claim

that "due to Defendants bad motive’ and conspiracy,"

plaintiffs have been deprived of "the fundamental rights of

both Rodriguez as Father, and Isidoro as a Son in their

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respective society and companionship, and their rights as

U.S. citizens to be safe and remain in the United States

without government interference pursuant to the Constitu-

tion. . .." (Compl. SI 128.) Rodriguez asserts that he has

stated a Bivens claim. (Compl. SI 2.) Under Bivens, the

federal courts may recognize a cause of action for damages

against an individual personally for unconstitutional

conduct committed by the individual as a federal official

acting under color of law. Bivens, 403 U.S. at 392-97. See

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001);

Browning v. Clinton, 292 F.3d 235, 250 (D.C. Cir. 2002) .

The federal defendants have moved to dismiss these

claims arguing, inter alia, that plaintiffs’ claims against the

individual federal defendants in their personal capacities

must be dismissed for lack of service of process, and that

claims against the federal organizations and individual

defendants in their official capacities must be dismissed

because there has been no waiver of sovereign immunity for

such claims. (Mem. Supp. Fed. Def.'s Mot. to Dismiss at 14,

25.) The private defendants have noved to dismiss these

claims, arguing, inter alia, that the complaint fails to state

a claim because it asserts only conclusory allegations,

unsupported by alleged facts, of a conspiracy to deprive

plaintiffs of their constitutional rights, that none of the

private defendants are proper Bivens defendants, and even

if the individual defendants were proper Bivens defendants,

they would be entitled to qualified immunity from such

claims. (Private Def.'s Mot. at 16-18.)

A. Service of Process on Defendants Marshall, McCannell,

and Malmborg

In a Bivens action against a federal official in his or

her individual capacity, the defendant must be sesved

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pursuant to rules that apply to individual defendants. See

Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369

(D.C. Cir. 1997); Delqado v. Fed. Bureau of Prisons, 727 F.

Supp. 24, 26 (D.D.C. 1989); Lawrence v. Acree, 79 F.R.D.

669, 670 (D.D.C. 1978). It is a plaintiff s responsibility to

establish personal jurisdiction, and the plaintiff must ensure

that service is properly effectuated by remedying any

known defect in service. See Reuber v. United States, 750

F.2d 1039, 1049, 1052 (D.C. Cir. 1984), abrogated on other

grounds by Kauffman v. Anglo-American School of Sophia,

28 F.3d 1223 (D.C. Cir. 1994); Rochon v. Dawson, 828 F.2d

1107, 1110 (Sth Cir. 1987).

Defendants contend in their motion to dismiss that

plaintiffs failed to personally serve process on Marshall,

McCannell, and Malmborg. (Mem. Supp. Fed. Def.'s Mot. to

Dismiss at 14.) Plaintiffs moved for a declaratory judgment as to

service of process on these defendants, alleging that service was

accomplished by delivery of a summons and complaint to an

employee from the Department of State's Office of Legal Advisor.

(See Docket Entry #26.) In ruling on plaintiffs motion, the court

noted that plaintiff's belief during the first month of litigation that

personal service on these three defendants was effective in their

personal capacities was not wholly unwarranted, and that plaintiff

had moved promptly to resolve the status of this service issue after

the effectiveness of the service was challenged. The court's Order

gave plaintiff 85 days from March 10, 2004 to serve process upon

Marshall, McCannell, and Malmborg in their individual capacities.

(See Docket Entry #116.) To date, plaintiff has not provided

notice that these defendants have been served in their individ-

ual capacities. As such, the plaintiffs’ Bivens claims against

Marshall, McCannell, and Malmborg in their individual

capacities will be dismissed.

B. Sovereign Immunity for Bivens Claims Against Federal

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Organizations and Individuals in their Official Capacities

Plaintiffs, in Counts One and Two, also appear to be

seeking recovery against the United States, the United States

Department of State and its offices -- The Office of Children's

Issues and The Office of Legal Adviser for Consular Affairs -- as

well as the individual federal defendants -Marshall, McCannell,

and Malmborg-in their official capacities.

Sovereign immunity bars all suits against the United

States, including suits against federal officers in their

official capacities, except when there has been a statutory

waiver of such immunity. See United States v. Mitchell,

445 U.S. 535, 538 (1980) (explaining that the United

States, as sovereign, is immune from suit except where it

consents to be sued, and that a waiver of sovereign immu-

nity cannot be implied but must be expressed with clear

congressional intent); Kentucky v. Graham, 473 U.S. 159,

166 (1985) (an official-capacity suit is to be treated as a

suit against the government entity itself). The United States

has not waived its sovereign immunity with respect to

constitutional tort claims. Clark v. Library of Congress, 750

F.2d 89, 103 n.31, 104 (D.C. Cir. 1984) (in suit against Library

and Librarian of Congress for violation of First Amendment

rights, court held that sovereign immunity barred suit for

money damages against Library and Librarian acting in his

official capacity); Laswell v. Brown, 683 F.2d 261, 268 (8th

Cir. 1982)(helding that, as to constitutional tort claim, the

United States and its agencies were not proper defendants

because of sovereign immunity, and explaining that Bivens

does not waive sovereign immunity for actions against the

United States). Furthermore, even where sovereign immunity

has been waived, Bivens has not been extended to permit suit

against a federal agency. See FDIC v. Meyer, 510 U.S. 471,

484-86 (1994). [T]he purpose of Bivens is to deter the

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officer,’ not the agency." Corr. Servs. Corp., 534 U.S. at 69

(quoting FDIC v. Meyer, 510 '/.S. at 485) .

Accordingly, any Bivens claims asserted against the

United States, federal agencies, and individual defendants in

their official capacities are barred by the doctrine of sovereign

immunity and will be dismissed pursuant to Federal Rule of

Civil Procedure 12 (b) (1).

C. Private Entities Engaged in Alleged Constitutional Depriva-

tion

The Supreme Court has held that there is no private

right of action, pursuant to Bivens, for damages against private

entities acting under color of federal law. See Corr. Servs.

Corp. v. Malesko, 534 U.S. 61 (2001) (in action alleging

constitutional deprivation against private operator of halfway

house, Supreme Court rejected the request to extend Bivens

liability to new category of defendants); see also Kauffman v.

Anglo-American School of Sofia, 28 F.3d 1223, 1224 (D.C. Cir.

1994) (holding that an entity that is not a federal agency, but

that is constrained by the Constitution in some or all of its acts

solely because of lesser links to the federal government, is

equally exempt from Bivens liability); Meuse v. Pane, 322 F.

Supp. 2d 36, 38-39 (D. Mass. 2004) (holding that plaintiff

could not sustain a Bivens action against broadcast network

because "a Bivens claim is simply not available against a

private entity even if that entity is acting under the color of

federal law").

Plaintiffs assert that NCMEC "is a nonprofit corporation

operating in all the States acting as an instrumentality or

agency of the United States." (Compl. 1 10.) Plaintiffs thus

seem to be asserting inconsistently that the NCMEC is both a

nonprofit corporation, which NCMEC claims to be, and a

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government agency. Assuming that NCMEC is a nonprofit

corporation, whether or not NCMEC was acting under the

color of federal law, plaintiffs have no right of action for

damages against it, and thus the constitutional claims for

damages against NCMEC must be dismissod. Alternatively,

construing the complaint to allege that the NCMEC is a

government agency and accepting such a claim as true, the

NCMEC has sovereign immunity from such claims as is

explained above.

Plaintiffs also assert that defendants Proskauer Rose,

LLP and Miles & Steckbridge, LLP are law partnerships, each

of which provides legal counsel or legal service to NCMEC.

(Compl. 11 14, 17.) As to these private entities as well,

whether or not they were acting under the color of federal law,

plaintiffs have no private right of action for damages for

alleged constitutional violations.

D. Alleged Constitutional Violations by Alien, Hammer,

Galary a, Stiehm, Dennis, Brinkerhoff, and Cullen

Several defendants argue that the Bivens claims against

them should be dismissed because they are private actors not

acting under the color of federal law, and thus are not proper

Bivens defendants. (Private Def.'s Mot. to Dismws at 32.)

"Critical to a successful Bivens claim" is that defendants "must

have acted ‘under color of [federal] authority.” Browning v.

403 U.S. at 389). "To be * under color of authority,’ the conduct

must be’ cloaked with official power [and the official must]

purport to be acting under color of official right." Id. (quoting

Lopez v. Vanderwater, 620 F.2d 1229, 1236 (7th Cir.1980)).

Proskauer Rose attorneys Warren Dennis and Susan

Brinkerhoff, Miles & Stockbridge attorney Stephen Cullen, and

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solo practitioner Patrick Stiehm, are private attorneys. Plain-

tiffs’ complaint does not allege that any of these individuals or

their firms are employees or officers of the United States, that

they are government actors, or that they acted under the color

of federal law. As such, they are not proper Bivens defendants.

See Van Leeuwen v. United States, 868 F.2d 300, 301-02 (8th

Cir. 1989) (affirming district court's ruling that plaintiffs did not

state Bivens claim or § 1983 claim against certain defendants,

because none was a government actor or in conspiracy with a

government actor). Cf. Polk County v. Dodson, 454 U.S. 312,

318 (1981)(noting that "the Courts of Appeals are agreed that

a lawyer representing a client is not, by virtue of being an

officer of the court, a state actor ‘under color of state law’

within the meaning of § 1983"); McCord v. Bailey, 636 F.2d

606, 613 (D.C. Cir. 1980) ("In their capacities as representa-

tives of a client in court, private counsel do not act under color

of state law.")..'

Defendants Alien, Hammer, and Galarza are employees

of the NCMEC, a nonprofit corporation. (See Compl. 1] 10-

13.) The defendants argue that "[a]lthough the NCMEC

carries out certain Hague Convention and ICARA functions on

behalf of the State Department, the NCMEC is simply a private

non-profit corporation that has centracted with the Depart

‘Although plaintiffs appear to allege that these private

attorneys conspired with government actors, plaintiffs’

conclusory allegations of a conspiracy, unsupported by the

alleged facts, are insufficient to recognize a cause of action

against these private individuals under Bivens. See Ostrer

v.Aronwald, 567 F.2d 551, 553 (2d Cir. 1977); Meyer v. Reno,

911 F. Supp. 11, 15 (D.D.C. 1996) (dismissing plaintiff's claims

for failure to state a claim upon which relief can be granted, as

plaintiff failed to assert any factual basis to support the

conclusion that a conspiracy existed) (citing Martin v. Malhoyt,

830 F.2d 237, 258 (D.C. Cir. 1987)).

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ment of Justice and the State Department via a Cooperative

Agreement to perform those functions." (Private Def.'s Mot. to

Dismiss at 33).

Whether Alien, Hammer, and Galarza acted under

color of federal authority need not be resolved, however,

because even if they did, the claims of constitutional violations

against these defendants do not withstand the defense of

qualified immunity. Under Bivens, the federal courts may

recognize a cause of action for damages for unconstitutional

conduct committed by a federal official acting under color of

law. 403 U.S. at 392-97. Government officials performing

discretionary functions, however, generally have “qualified

immunity” from civil damages liability unless their conduct

violated "clearly established statutory or constitutional rights

of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity

"focuses on the objective legal reasonableness" of the action as

measured by legal rules that were "clearly established" at the

“Supreme Court decisions have recognized two kinds of

immunity defenses. "For officials whose special functions or

constitutional status requires complete protection from suit,

{the Supreme Court has] recognized the defense of ‘absolute

immunity.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).

For example, absolute immunity applies to legislators in their

legislative functions, judges in their judicial functions, and

cenain officials of the Executive Branch. Id. "For executive

officials in general, however, . . . qualified immunity represents

the norm. . .. [H]igh officials require greater protection than

those with less complex discretionary responsibilities.” Id.

Furthermore, the Supreme Court has recognized that while

judicial and legislative functions, for example, require absolute

immunity, this protection extends only to acts legislative or

judicial in nature, and not to other acts of judges and legislators,

even when taken in their official capacities. Id. at 811.

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time the action was taken. Id. at 819.

Whether an official has qualified immunity is resolved

by a two-step inquiry. See Saucier v. Katz, 533 U.S. 194, 201

(2001); Maye v. Reno, 231 F. Supp. 2d 332, 336 (D.D.C.

2002). The threshold question is whether, "[t}aken in the light

most favorable to the party asserting the injury,. . . the facts

alleged show the officer's conduct violated a constitutional

right[.]" Saucier, 533 U.S. at 201 (citing Siegert v. Gilley, 500

U.S. 226, 232 (1991)). "If no constitutional right would have

been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity.’

Id. If a violation could be made out, the second inquiry is

"whether the [constitutional] right was clearly established." Id.

In assuming the truth of the facts plaintiffs have

alleged, construing the complaint liberally in the plaintiffs’

favor, and giving the plaintiffs the benefit of all inferences that

can be derived from the facts alleged, "the court need not

accept inferences drawn by plaintiffs if such inferences are

unsupportea by the facts set out in the complaint [or] accept

legal conclusions cast in the form of factual allegations."

Kowal, 16 F.3d at 1276. Furthermore, “complaints containing

only ‘conclusory,’ ‘vague,’ or ‘general allegations’ of a

conspiracy to deprive a person of constitutional rights will be

dismissed." Ostrer v. Aronwald, 567 F.2d 551i, 553 (2d Cir.

1977) (holding that plaintiffs’ unsupported allegations did not

suffice to state a claim of governmental conspiracy to deprive

plaintiffs of their constitutional rights, explaining that the

complaint failed to show a nexus between an alleged pattern

of harassment and acts of defendants). "Diffuse and expansive

allegations are insufficient, unless amplified by specific

instances of misconduct." Id. Cf. Contemporary Mission, Inc.

v. United States Postal Serv., 648 F.2d 97, 106-08 (2d Cir.

1981) (where plaintiff sued Postal Service and its officials for

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interference with constitutional rights, court affirmed grant of

summary judgment, without discovery, to defendants where

plaintiff merely "colored its complaint with conclusory allega

tions of a wide-ranging conspiracy to deprive it of its constitu-

tional right to due process and free exercise of religion" and

when required to furnish affidavits demonstrating existence of

genuine issue of material fact, “plaintiff responded by present-

ing immaterial factual inconsistencies and by reiterating its

conclusory allegations of conspiracy’).

Here, plaintiffs' complaint contains merely conclusory

allegations that employees of the NCMEC were engaged in a

conspiracy to deprive plaintiffs of their fundamental rights. For

example, plaintiffs allege that these defendants “have and

continue[] to engage in a custom, policy, or practice of a

conspiracy to disregard and thereby violat[e] the fundamental

rights of United States citizens," and that "in furtherance of its

unlawful custom, policy or practice. . . Defendants employees

and agents intentionally conspired to deprive [plaintiffs’ to

their rights. . .." (See Compl. 11 69, 70.) Plaintiffs make many

other broad-brush allegations, including that defendants

“surreptitiously through legal sophistry use[d]} the Convention

to supercede the fundamental rights” of plaintiffs, that "[i}t is

presumptively unconstitutional and violative of due process

and access to the courts by a broad conspiracy to use politcal!

clout with the federal courts and to systematically take official

action design[ed] to frustrate Isidoro suit in the Fairfax Family

Court. . .." (See Compl. SI 129) . However, plaintiffs allege no

specific facts which would be evidence of the existence of any

such alleged conspiracy, or upon which an inference that such

a conspiracy existed could be drawn.

To the extent that plaintiffs do make specific fact

allegations regarding Galarza, Hammer, and Alien, they

merely claim that Galarza left a telephone message with

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Hazbun regarding Isidoro, that Galarza sent e-mails and faxes

to the Colombian Central Authority allegedly advising it to

quickly submit Hazbun's Convention application, and that

Hammer refused to meet with Rodriguez. They also claim that

these defendants allowed interference in Rodriguez's family

court action, failed to train and properly supervise employees

regarding plaintiffs’ rights, and failed to assure access and

communication between Ro¢riguez and Isidoro. These alleged

facts do not allege either a conspiracy to deprive plaintiffs of

their rights or the deprivation of any constitutional right at all.

Nor do the results of these alleged actions support an inference

that they were undertaken as part of an actionable conspiracy.

Plaintiffs were not deprived of due process, access to the

courts, a right to petition the government, or a father/son

relationship. Rodriguez was heard by both the U.S. District

Court for the Eastern District of Virginia and the U.S. Court of

Appeals for the Fourth Circuit. See Hazbun Escaf v. Rodriguez,

200 F. Supp. 603 (E.D. Va. 2002); Escaf v. Rodriguez, 52 Fed.

Appx. 207, 2002 WL 31760202 (4th Cir. 2002) (unpublished),

cert, denied, 538 U.S. 1000 (2003). Judge Ellis and the

Fourth Circuit fully considered plaintiffs’ custody claims and

decided them. The Fourth Circuit also decided that the district

court proceedings did not violate Rodriguez's parental rights or

Isidoro's due process rights. Escaf v. Rodriguez, 52 Fed. Appx.

207 at 209. To the extent that plaintiffs are seeking relitigat-

ion of those issues, . heir claims are barred by the doctrine of

collateral estoppel. See Parklane Hosiery Co. v. Shore, 439

U.S. 322, 327-33 (1979)(holding that petitioners were

collaterally estopped from relitigating question of whether

proxy statement was false and misleading, because petitioners

had "full and fair” opportunity to litigate their claims in a prior

action brought by the SFC); Otherson v. Dep't of Justice, 711

F.2d 267, 273 (D.C. Cir. 1983) (collateral estoppel, or issue

preclusion, is established when an issue was actually litigated

and submitted for judicial determination in

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an earlier case, the issue was “actually and necessarily deter-

mined by a court of competent jurisdicticn" in the first case,

and preclusion in the second case does not cause any unfair-

ness).

Il. CLAIMS UNDER FEDERAL TORT CLAIMS ACT

Plaintiffs allege in Count Three that the acts of defen-

dants Marshall, McCannell, Malmborq, Alien, Hammer,

Galarza and other unknown individuals violated the Federal

Tort Claims Act ("FTCA"), in that their actions violated plain-

tiffs' rights to the society and companionship of the father-son

relationship and access to the courts, and constituted an

"illegal shanghaiing of Isidoro from the United States,” negli-

gent supervision, intentional infliction of emotional distress,

violation of freedom to petition the government, falsification

of official documents, and invasion of privacy. (Compl. n 139-

142.) The federal defendants contend that the FTCA claims

against them should be dismissed for failure to exhaust

administrative remedies and for failure to state a valid claim

under the FTCA. (Mem. in Support of Fed. Def.'s Mot. to

Dismiss at 27-29.) The private defendants contend that only

the United States is a proper defendant to an FTCA claim, and

that the claim is foreclosed in any event by failure to file an

administrative complaint against these defendants. (Private

Def.'s Mot. to Dismiss at 35-37.)

The federal government, its agencies, and federal

officials when sued in their official capacities, are shielded

from tort actions for damages unless sovereign immunity has

been waived. United States v. Testan, 424 U.S. 392, 399

(1976); United States v. Mitchell, 445 U.S. 535, 538 (1980).

The FTCA provides for a limited waiver of sovereign immunity

for common law torts when the government's employees act

negligently within the scope wf their employment.

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However, the FTCA does not waive sovereign immu-

nity with respect to constitutional torts. See FDIC v. Meyer,

510 U.S. 471, 477-78 (1994) ("the United States simply has

not rendered itself liable under [28 U.S.C.] § 1346 (b) for

constitutional tort claims"); Laswell v. Brown, 683 F.2d 261,

267-68 (8th Cir. 1982); Birnbaum v. United States, 588 F.2d

319, 327-28 (2d Cir. 1978); Zakiya v. United States, 267 F.

Supp. 2d 47, 56 (D.D.C. 2003); Meyer v. Fed. Bureau_of

Prisons, 929 F. Supp. 10, 13-14 (D.D.C. 1996); Kline v.

Republic of El Salvador, 603 F. Supp. 1313, 1317 (D.D.C.

1985). Thus, plaintiffs' constitutional claims for access to the

courts, to petition the government, violation of their rights to

society and companionship of the father-son relationship,’ and

any other of these charges which could be construed as

constitutional torts, must be dismissed as there is no applicable

waiver of sovereign immunity.

A prerequisite to filing a civil tort action under the

FTCA is the requirement of presentment pursuant to 28 U.S.C.

§ 2675 (a). Aclaimant must present his claim to the appropri-

ate administrative agency, and the claim must be denied by the

agency, before the claimant may institute an action for that

claim under the FTCA. 28 U.S.C. § 2675 (a) ; see GAF Corp.

v. United States, 818 F.2d 901, 917-18 (D.C. Cir. 1987).

Section 2675 (a) requires a claimant to file with the agency:

"(1) a written statement sufficiently describing the injury to

*Plaintiffs claim a right to society and companionship in

the father-son relationship under the Fifth Amendment.

Plaintiffs’ articulation of this right is vague at best. The private

defendants’ motion speculates that plaintiffs allege a

fundamental Due Process Clause right of parents in the care and

custody of their children. However, whether this right of

companionship that plaintiffs claim is an established

constitutional right need not be decided.

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enable the agency to begin its own investigation, and (2) a

sum-certain damages claim." GAF Corp., 818 F.2d at 919.

This notice requirement enables the agency “to investigate and

ascertain the strength of a claim" and “to determine whether

settlement or negotiations to that end are desirable." Id. at

920.

Rodriguez filed an administrative claim for relief with

the United States Department of State on January 7, 2002.

(Corapl. SI 142; see Compl. Ex. 13, 22.) The complaint was

denied on August 1, 2002.* (Complaint SI 142; Ex. 21.) (See

Compl. Ex. 23.) Plaintiff's administrative claim, in the form of

a letter to Marshall, complains of actions violating his and his

son's "fundamental Constitutional rights" and specifically

alleges the following injuries: 1) that a letter from Marshall to

Judge Valentine (of the Virginia Juvenile Domestic Court)

misstated facts regarding Rodriguez's family court action and

was "designed to obfuscate" Rodriguez's and Isidoro's funda-

mental rights "to modify the custody agreement"; 2) that

Patrick Stiehm entered an appearance on behalf of the NCMEC

in Rodriguez's family court action and stated that he would be

filing a complaint in U.S. District Court under the Hague

Convention and would be seeking a dismissal of the family

court action, also allegedly "designed [to] obfuscate” Isidoro's

fundamental rights; and 3) chat Rodriguez "could only obtain

telephone contact" with the NCMEC staff and Ms. Espie of

Marshall's staff. (Compl. Ex. 13.) Plaintiff s letter also states

“After this denial, on September 15, 2002, plaintiff filed an

amendment to his administrative complaint (see Compl. SI 1-42,

Ex. 22), which was not considered by the Department of State

as it was deemed untimely. (See Compl. Ex. 23.) Under the

regulations to the FTCA, 28 C.F.R. § 14.2 ©), an administrative

claim "may be amended by the claimant at any time prior to

final agency action. . .."

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that these acts “have caused emotional distress and apprehen-

sion of the possible forced return and detention of [Isidoro] in

Colombia." (Compl. Ex. 13.) This administrative complaint

fails to present to the administrative agency all of the putative

tort claims plaintiffs currently raise before the Court in Count

Three of their complaint. Rodriguez's administrative complaint

does not, and cannot reasonably be construed to, raise claims

of "illegal shanghaiing of Isidoro from the United States,"

negligent supervision, falsification of official documents, or

invasion of privacy. Thus, these claims must be dismissed as

plaintiffs have failed to comply with the requirement of 28

U.S.C. § 2675. See Kline, 603 F. Supp. at 1317 (because

plaintiffs failed to comply with 28 U.S.C. § 2675(a), their suit

was barred).

The only of plaintiffs’ common law tort claims in Count

Three arguably raised at the agency level is intentional

infliction of emotional distress. Intentional infliction of

emotional distress "requires conduct so “outrageous in charac-

ter, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and

witerly intolerable in a civilized community."" Browning v.

Clinton, 292 F.3d 235, 248 (D.C. Cir. 2002) (quoting Bernstein

v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991) (quoting

Restatement (Second) of Torts § 46 cmt. d (1965))). How-

ever, none of the factual allegations in the complaint that

arguably were presented to the agency -- which include

misstating facts, entering an appearance in court, and declining

to meet with Rodriguez -- is so outrageous in character or so

extreme in degree as to go beyond all possible bounds of

decency. Thus, appellant can prove no set of facts in support

of the intentional infliction of emotional distress claim. See

Browning, 292 F.3d at 241, 248 (holding that where plaintiff

made intentional infliction of emotional distress claim, relying

upon threats and statements made which included terms such

A-44

as "scurrilous" and "garbage," situation could have been

disturbing to plaintiff but did not go beyond all possible

bounds of decency or qualify as "utterly intolerable in a

civilized community"); Rogala v. District of Columbia, 161 F.3d

44, 57-58 (D.C. C*~. 1998) (where plaintiff alleged emotional

distress based on police officer's actions of threatening to arrest

her, yelling at her, laughing at her, and detaining her for an

unnecessarily length of time at a police station, the court found

that the officer's “conduct did not approach the level of

egregiousness necessary to sustain a claim for intentional

infliction of emotional distress").”

Ili. CLAIM OF CONSPIRACY TO VIOLATE CIVIL RIGHTS

UNDER 42 U.S.C. § 1985(3) AND ACTION FOR NEGLECT TO

PREVENT UNDER § 1986

In Count Four, plaintiffs allege that "some or all of the

{defendants and others" conspired to violate their constitu-

tional rights based on a discriminatory animus towards United

States Hispanic men, in violation of 42 U.S.C. §§ 1985(3) and

1986. Specifically, plaintiffs claim that "there was a Meeting

of the Minds arong [the defendants] regarding their desire to

*Plaintiffs appear to concede that they are not raising any

common law tort claims in Count-Three. In their opposition to

the defendants’ motions to dismiss, plaintiffs state that the

defendants “are confused -- the FTCA claim was [] based on...

the negligent actions to violate the rights under the Treaty and

ICARA of the right of Isidoro to have the Fairfax Family Court

hear the Treaty claim" and that the defendants’ actions were

“designed to deprive Rodriguez and Isidoro of their fundamertai

rights -- so to prevent a determination that the Treaty was

unconstitutional as to efforts to take Isidoro out of the United

States." (Pl.'s Omnibus Resp. in Opp. to Def.'s Motions to

Dismiss at 29-30.)

A-45

violate and deprive Rodriguez and Isidoro based on being

Hispanic United States citizens of the equal privileges and

immunities under fundamental constitutional civil rights in the

society and companionship in the father/son relationship,

access to the Courts, and for Isidoro to stay in the United

States." (Compl. S1 144.) Plaintiffs incorporate by reference all

other facts alleged in their complaint in support of their

conspiracy claim. (See Compl. SI 143.)

Section 1985(3) prohibits conspiracies to deprive any

person of the equal protection of the law. 42 U.S.C. § 1985(3).

Plaintiffs’ §§ 1985 (3) claim against the federal defendants

must be dismissed because it is barred by the doctrine of

sovereign immunity. See Hohri v. United States, 782 F.2d

227, 245 n. 43 (D.C. Cir. 1986) (holding that § 1985, by its

terms, does not apply to actions against the United States),

vacated on other grounds, 482 U.S. 64 (1987); Brug v. Nat'l

Coalition for the Homeless, 45 F. Supp. 2d 33, 40 (D.D.C.

1999); Graves v. United States, 961 F. Supp. 314, 318 (D.D.C.

1997).

The private defendants argue for dismissal on the

ground that plaintiffs failed to allege facts that would demon-

strate that the defendants acted out of racial animus. Plaintiffs

"suing under § 1985(3) must allege: (1) a conspiracy; (2) for

the purpose of depriving any person or class of persons of the

equal protection of the laws, or of privileges and immunities

under the law; (3) motivated by some class-based, invidiously

discriminatory animus; (4) whereby a person is either injured

in his person or property, or is deprived of any right or

privilege of a citizen of the United States." Bruq, 45 F. Supp.

2d at 40 (citing Graves, 961 F. Supp. at 320.) Moreover, "[t]o

sufficiently state a cause of action thc plaintiff must allege

some facts that demonstrate that his race [or other class-based

animus] was the reason for the defendant[s'] [actions]. [A]

A-46

failure to allege such facts render{s] [a] discrimination claim

under. . . § 1985 incomplete." Jatfree v. Barber, 689 F.2d 640,

643 (7th Cir. 1982)(where plaintiff samended petition seeking

writ of mandamus alleged that defendant had not investigated

plaintiffs charges because of his race, and the only facts

underlying that claim were that "the plaintiff is “ Brown" and

"that his charges have not been investigated,” court affirmed

dismissal of the claim on the basis that allegations were

conclusory); see Beran v. United States, 759 F. Supp. 886, 893

(D.D.C. 1991) (dismissing plaintiffs § 1985 claim in light of

fact that plaintiff presented no facts to indicate that alleged

conspiracy was prompted by racial or class-based animus);

Maye v. Reno, 231 F. Supp. 2d 332, 339 (D.D.C. 2002)(hold-

ing that plaintiff failed to allege the requisite elements of a

claim under any section of § 1985, for, among other reasons,

plaintiff "provided insufficient ailegations that he was treated

differently from other similarly situated individuals"); Thomas

v. News World Communications, 681 F. Supp. 55, 69 (D.D.C.

1988) (where plaintiffs claimed that alleged torts were

motivated by religious animus, court held that plaintiffs failed

to allege with sufficient specificity that defendants were

motivated by discriminatory animus; where plaintiffs did

expressly allege that defendants were motivated by religious

animus, they also alleged other, non-actionable motivation,

and “fail{ed] to specify any evidence that would support any of

these allegations"). Here, plaintiffs claim that defendants

conspired against them "in whole or in part because of their

being Hispanic," and that they neglected to prevent violations

of plaintiffs’ fundamental rights “based on invidious discrimina-

tory animus against Rodriguez and Isidoro as U.S. citizens

Hispanic men," but plaintiffs allege no facts, which if taken as

true, would support such a claim.

Section 1986 provides a right of action for damages

against a person who, “having knowledge that any of the

A-47

wrongs conspired to be done, and mentioned in section 1985

of this Title, are about to be committed, and having power to

prevent or aid in preventing the commission of the same,

neglects or refuses so to do, if such wrongful act be committed.

.." 42 U.S.C. § 1986. "The language of this provision estab-

lishes unambiguously that a colorable claim under § 1985 is a

prerequisite to stating an adequate claim for neglect to prevent

under § 1986." Thomas, 681 F. Supp. at 72 (citing Mollnow v.

Carlton, 716 F.2d 627, 632 (9th Cir. 1983)); see Dowsey v.

Wilkins, 467 F.2d 1022, 1026 (Sth Cir. 1972). Here, since

plaintiffs have failed to state a claim under § 1985, plaintiffs’

claims under 42 U.S.C. § 1986 will be dismissed.

IV. WRIT OF MANDAMUS

Plaintiffs also request a writ of mandamus directing the

U.S. Department of State to "keep [Isidoro] safe while in

Colombia, assure access and unhindered communication with

Isidoro, and to seek [Isidoro's]. . . immediate return to the

United States." (Compl. at 38-39.)

A writ of mandamus is "an extraordinary remedy, to

be reserved for extraordinary situations.” Nat'l Ass'n of

Criminal Defense Lawyers, Inc. v. United States Dep't of

Justice, 182 F.3d 981, 986 (D.C. Cir. 1999). For a writ of

mandamus to issue, “the party seeking issuance of the writ

{must} have no other adequate means to attain the relief he

desires." Kerr v. United States Dist. Court for Northern Dist.

of California, 426 U.S. 394, 403 (1976). In addition, the

party seeking the writ must satisfy "the burden of showing

that [his] right to issuance of the writ is “clear and

indisputable.” Id. (internal quotations omitted). Further-

more, "issuance of the writ is in large part a matter of

discretion with the court to which the petition is addressed.”

Id.

A-48

Here, plaintiffs cannot establish that their right to

issuance of the writ is “clear and indisputable.” Indeed, the writ

of mandamus that plaintiffs seek in this district would circum-

vent the order issued by the court in the Eastern District of

Virginia requiring that Isidoro return to Colombia. Plaintiffs

have neither presented any authority supporting the power of a

district court to aid petitioners in achieving such judicial

manipulation, nor established that the judicial process he

invoked in Virginia was unavailable to adjudicate his case. The

writ will be denied.

V. MOTION TO DISQUALIFY AND AMENDED COMPLAINT

Plaintiff Rodriguez filed a motion to disqualify me from

this matter and to appoint a judge outside of the District of

Columbia and the Fourth Circuit. Rodriguez claims that since

plaintiffs have filed an amended complaint naming me as a

defendant, | am required to disqualify myself pursuant to 28

U.S.C. § 455 (b) (5) (1).

Section 455 (b) (5) (I) states that a judge "shall. . .

disqualify himself" when he "[i]s a party to the proceeding. . .."

28 U.S.C. § 455 (b) (5) (1) . However, courts have construed

this section as not requiring automatic disqualification. Ander-

son v. Roszkowski, 681 F. Supp. 1284, 1289 (N.D. 111. 1988)

(citations omitted), aff'd, 894 F.2d 1338 (7th Cir. 1990). See,

185 F.3d 8, 10 (2d Cir.

1999) (holding that where appellant indiscriminately named all

then-current Second Circuit judges as defendants, under the

“rule of necessity" the court was not disqualified from resolving

the appeal, 4 »..‘te § 455(b)(5)(1)). For example, "courts have

refused to « %« ualify themselves under Section 455 (b) (5) (1)

unless ther: ., a legitimate basis for suing the judge" in order to

prevent plaintiffs from "judge-shopping.” Anderson, 681 F. Supp.

A-49

at 1289 (citing In re Martin-Trigona, 573 F. Supp. 1237, 1243

(D. Conn. 1983)). As one commentator has explained:

A judge who is named as a defendant in a plaintiffs

amended complaint is not required to disqualify himself

or herself under 28 U.S.C.A. § 455 (b) (5) (I) unless

there is a legitimate basis for suing the judge. For a

judge to be disqualified simply because the plaintiff has

sued the judge would be to allow the plaintiff to manip-

ulate the identity of the decision-maker and thus to

engage in judge-shopping.

32 Am. Jur. 2d Federal Courts § 149. In Anderson, the plaintiffs

filed an amended complaint naming the current judge sitting in

the case as a defendant, and renewed a previously filed motion

to disqualify all of the judges in the Seventh Circuit and to

transfer the case to a judge out of the Seventh Circuit. 681 F.

Supp. at 1287-88. The court held that it was not required to

disqualify itself under Section 455(b)(5)(1), explaining:

It is apparent to the Court that plaintiffs do not have a

legitimate basis for suing me, my secretary, and my

minute clerk. None of us were sued in plaintiffs’ initial

complaint; we were added as defendants only 2° er I

dismissed plaintiffs' Complaint. . .. To disqualify myself

simply because plaintiffs have sued me would be to

allow plaintiffs to manipulate the identity of the deci-

sion maker and to engage in "judge-shopping". ... If this

Court were to disqualify itself. . . plaintiffs would sue

the new district judge and so on and so on. The Court

will not allow plaintiffs to impede the administration of

justice by suing every district judge. . . until their case is

transferred out of the Seventh Circuit.

Id. at 1289.

A-50

Plaintiffs here have filed an amended complaint naming

me, the United States District Court for the District of Columbia,

the United States Courts of Appeals for the District of Columbia

and Fourth Circuits and some of their judges, the Supreme

Court of the United States, the Chief Justice of the United States,

as well as other judges, organizations, and individuals. Plaintiffs’

amended complaint appears to mirror in substance the criginal

complaint, with a few additional defendants and causes of

action. As in Anderson, it is apparent that plaintiffs do not have

a legitimate basis for suing me or these other newly-named

defendants. Rather, plaintiffs’ amended complaint and motion

to disqualify are merely transparent attempts to judge-shop and

forum-shop. This is all the more evident given plaintiffs’

previous motion requesting my recusal in this case pursuant to

28 U.S.C. §§ 144 and 455 (a) (see Docket Entry #73), which

was denied. (See Docket Entry #1:4.) Because the thrust of

plaintiffs’ amended complaint clearly appears to be an effort to

forum-shop and judge-shop, it will be stricken it its entirety.

CONCLUSION

Plaintiffs cannot proceed with their claims of constitu-

tional violations under Bivens as to any of the defendants.

Plaintiffs failed to serve process on the federal individual

defendants in their individual capacities, and these individuals

are entitled to sovereign immunity from suits for money

damages against them in their official capacities. Additionally,

the federal organizations have sovereign immunity from suits for

money damages. The court thus does not have subject matter

jurisdiction over these claims. As to the private organizations

and some of the private individuals, they are . .t proper Bivens

defendants. As to the other individual private defendants, even

if they are proper Bivens defendants, plaintiffs have not stated

a claim against them that would withstand qualified immunity.

A-51

The court also lacks subject matter jurisdiction over the

plaintiffs’ claims of constitutional torts under the Federal Tort

Claims Act, as the United States has not waived sovereign

immunity with respect to constitutional torts. Additionally,

plaintiffs failed to present certain of their alleged non-constitu-

tional tort violations at the agency level, and, with regard to the

alleged tort violation they did present at the agency level, they

fail to state a claim upon which relief can be granted.

Plaintiffs have also failed to allege facts supporting the

existence of a conspiracy based on racial or other class-based

animus sufficient to state a claim under § 1985(3). As such,

they have also failed to state a claim under § 1986. Further-

more, plaintiffs have failed to show that their right to a writ of

mandamus is clear and indisputable.

Finally, plaintiffs’ recent motion to disqualify and their

amended complaint are nothing more than a transparent

attempt at judge-shopping and forum-shopping.

Accordingly, plaintiffs’ motion to disqualify will be

denied, the amended complaint will be stricken in its entirety,

and plaintiffs' original complaint will be dismissed pursuant to

Rules 12 (b) (1) and 12 (b) (6). An Ordr~ accompanies this

Memorandum Opinion.

SIGNED this 31st day of March, 2005.

/s/

RICHARD W. ROBERTS

United States District Judge

A-52

Fairfax County Juvenile and

Domestic Relations District Court

To: Judge Mann Case No(s): JJ347050-01-03

From: Clerk’s Office

Date: Jan. 21,2005 Case Name: Rodriguez-Hazbun,

Isidoro

Isidoro Rodriguez (Father) is appealing the following:

o Visitation

/s/

Isidoro Rodrig»2z

Bond Information

Juvenile Cases Only

Other: This is not an appealable order.

Date: Jan. 21, 2002 ek /s/

Judge Thomas Mann

A-53

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building inthe City of Richmond on Wednesday the 18"

day of August, 2004.

ISIDORO RODRIGUEZ-HAZBUN

Appellant.

v. Record No. 041702

Court of Appeals No3247-03-4

AMALIN HAZBUN ESCAF

Appellee.

From the Court of Appeals of Virginia

Upon consideration of the record and pleadings filed

herein, the Court is of opinion that Isidoro Rodriguez lacks

standing in this matter because he has no authority to sue in his

son’s name. Accordingly, the petition for appeal filed in this

case is dismissed.

A Copy

Teste:

/s/

Clerk

A-54

United States Court of Appeals for the District of Columbia

Circuit

No-03-5092

Dated: July 1, 2003

In re Master Isidoro Rodriguez-Hazbun, fourteen-year-old son of

Isidoro Rodriguez, Esq., and Isidoro Rodriguez, Esq. Father of

Isidoro Rodriguez-Hazbun, a minor,

Petitioners

Ginsburg, Chief Judge, and Edwards, Sentelle,

Henderson, Randolph, Rogers, Tatel, Garland,

and Roberts, Circuit Judges

ORDER

Upon consideration of petitioners’ petition for rehearing

en banc, it is

ORDERED that the petition be denied.

Per Curiam

For the Court

Mark J. Lagger, Clerk

co ft ii eR OS

Michael c. MicGrail

Deputy Clerk

A-55

United States Court of Appeals for the District of Columbia

Circuit

No-03-5092

Dated: May 28, 2003

Inre Master Isidoro Rodriguez-Hazbun, fourteen-year-old son of

Isidoro Rodriguez, Esq., and Isidoro Rodriguez, Esq. Father of

Isidoro Rodriguez-Hazbun, a minor,

Petitioners

BEFORE: Ginsburg, Chief Judge, and Edwards and Ran-

dolph, Circuit Judges

ORDER

Upon consideration of the petition for a writ of manda-

mus, and the motion to expedite consideration of the petition,

it is

ORDERED that the petition be denied. To the extent

petitioner seeks a writ of ma1damus to be issued by the district

court, petitioner has not demonstrated a “clear and indisput-

able” right to relief and that “no other adequate means to attain

the relief’ exist. In re Sealed Case No. 98-3077, 151 F.3c. 1059,

1062-63-& n. 4 (D.C. Cir. 1998) (citations omitted). In deed, to

attain the relief he seeks from the district court to amend the

docket to reflect pending civil action, petitioner may move the

district court to amend the docket to reflect that such action was

brought my petitioner both individually and on behalf of his

minor son. To the extent petitioner seeks a writ of mandamus

to be issued to the Department of State, it is well-settled that

such request be brought before the district court in the first

instance. See Telecommunication Research & Action Ctr. v. FCC,

A-56

750 F.2d 70, 77 (D.C. Cir. 1984). It is

FURTHER ORDERED that the motion to expedite be

dismissed as moot.

Per Curiam

S/

A-57

Ref No. 23.833(CUSTODY AND VISIT REGULATION)

FIRST FAMILY COURT ROOM, BARRANQUILLA, COLOMBIA,

August 26, 1997

Mrs. Mabel Castro-Palacio-Defendant’s Attorney in the -

process for custody and visit regulations initiated by Mrs.

Amalin Hazbun, against Mr. Isidoro Rodriguez Cruz, in favor of

minor Isidoro Rodriguez Hazbun, requests this Court to add the

present document to the record of the hearing attended on

August 1“, 1997, raised with basis on the conciliation that the

parties arrived at, in order to determine clearly and expressly,

that the custody of the above mentioned minor will be shared

by the parents, since this was the basic point for the conciliation.

The Court, in order to resolve the petition of the Defen-

dant’s Attorney, refers to the statement of the Defendant, which

was literally written down and is hereby transcribed in its

relevant portion, so that this Court may take the corresponding

decision. Mr. Rodriguez-Cruz states in the aforementioned

document: !

“fI propose Joint Custody of my son ISIDORO RODRI-

GUEZ HAZBUN in the following manner:] That his mother Mrs.

Amalin Hazbun Escaf keep him under her personal care but that

both parents share the right for the education, and the moral

and intellectual up-bringing of our son. As for the visits, I

propose to take my son Isidoro Rodriguez-Hazbun on Fridays

every fortnight at school’s exit hour, in order to spend the

weekend together, and to take him back to his mother on

Sunday at seven p.m. or on Monday if it is a holiday, with his

home work done, and with his complete luggage. On week-

days, that is, form Monday to Friday, I commit myself to take

my son ISIDORO to his additional lessons, then take him and

stay with him until seven o'clock p.m., at weeks when he will

spend the night over, this is to say, once a week. At weeks

A-58

when he will nut spend the night, apart from taking him from

the above menticned additional lessons, I will take him to his

soccer lessons once a week until seven p.m., meaning that week

there will be two visiting days on working days.”

From the foregoing transaction, it is clearly observed

that the mother of the minor Isidoro, retains the child’s custody,

and therefore there is no need to make any clarification thereto.

It would be otherwise if Mrs. Amalin Emilia Hazbun-

Escaf had not complied with the conciliation terms stated in the

document alluded by Mrs. Mabel Castro, in which case strict

compliance would be requested to the Court, and Mrs. Hazbun-

Escaf penalized accordingly.

Notify and comply

s/

LUZ MYRIAM REYES CASAS, Judge

s/

Serra Newman, Certified Translator, Lic. Ministry of Justice,

Bogota Colombia, March 25, 1988 (23/0701).

A-59

HEARING BEFORE FIRST FAMILY COURT OF BARRANQUILLA,

COLOMBIA

PROCESS: CUSTODY AND PERSONAL CARES

PLAINTIFF: AMALIN HAZBUN ESCAF

DEFENDANT: ISIDORO RODRIGUEZ CRUZ

MINOR: 1

In Barranquilla, on August first (1") of Nineteen Ninety

Seven (1997), during public hearing at the First Family Court,

the Honorable Judge declares open the hearing in this process

of CUSTODY AND PERSONAL CARES of AMALIN HAZBUN

ESCAF vs. ISIDORO RODRIGUEZ CRUZ, on behalf of minor

ISIDORO RODRIGUEZ HAZBUN. It is confirmed that both

parties are present and their attorneys. At this stage of the

hearing the Honorable Judge advice the parties to present an

agreement or conciliation ‘ormula.

Defendant Mr. ISIDORO RODRIGUEZ speaks and says:

I propose the Joint Custody of my son ISIDORO

RODRIGUEZ HAZBUN in the following manner:

That the mother AMALIN EMILIA HAZBUN ESCAF

have him her personal cares but both parents share the rights of

correction, moral and intellectual education of our minor child.

Regarding visitations: I propose to pick up my son

ISIDORO RODRIGUEZ HAZBUN every fifteen days at the end of

school day on Friday for him to stay with me all that weekend,

taking him back on Sunday at 7 pm to the house of his mother

or on Monday if it is holiday, with his homework done and his

complete luggage. During the week days, this is Monday

through Friday, I will pick up my son ISIDORO to take him to

classes with the additional teacher assigned, and will pick him

up at the class and continue with him until 7 pm, this when in

A-60

that week it correspond to me his visitation spending the night

with me, this is once a week. When there is no visitation

spending night with me besides picking him up on the day of

the above noted classes | will pick him up on the day he has

football classes once a week until the same hour, that means

that in that week there will be two visitation days on week days.

I want to add that in the case that for any circumstances there

is not football class or writing class with the teacher, he will be

with me anyway two working days in the week and in the other

week one working day and will spend the weekend with me.

Vacations will be shared as follows: The child will spend

one year Carnivals with a parent and Holy Week with the other,

mid year vacation since are longer jointly parents agree (......)

fifteen days with the mother. The end of year vacation this year

the first fifteen days will be with the father permitting that if the

minor is still with him for December 31“ spend that date with

his mother and go back with him to finish the vacation and this

situation of the end of year vacation will alternate annually

keeping always the spirit of sharing one of the two special dates

of December 24 and 31“ of each year. No discussion fathers’

day he will spend it with his father and mothers’ day with his

mother. Regarding birthday of the child ISIDORO we will

celebrate it jointly the parents with our son, making it clear that

next celebration will be made by me.

Ms. AMALIN HAZBUN takes the word and states: I am

totally in agreement with the formula offered by the defendant.

The Honorable Judge takes the word to say. Since the parties

have arrived to an agreement about the totality of the litigation,

being such agreement in accordance with the law, it is approved

and this process finished.

It is just confirmed that at the non-compliance with the

agreed hereby it will be applied by express statement of num. 4

A-61

of art. 350 of the Minor Code the sanctions provided on article

72 ibicem.

No costs in this process. It is signed by all those who

have intervened. The parties wish to clarify that just for year

1988 the mother will have the minor during Carnivals as well as

Holy Week.

The Judge:

S/

LUZ MYRIAM REYES CASAS, Judge

Plaintiff:

s/

AMALIN HAZBUN ESCAF

Defendant:

s/

ISIDORO RODRIGUEZ CRUZ

Attorney for Plaintiff

S/

LUZ MYRIAM SANCHEZ DE CARVAJAL

Attorney for Defendant

s/

MABEL CASTRO PALACIO

The Court Clerk

S/ oa

ELVIA MAZA DE CANTILLO

s/

Serra Newman, Certified Translator, Lic. Ministry of Justice,

Bogota Colombia, March 25, 1988-23/07/01

B--1

U.S. CONSTITUTION, TREATY, FEDERAL STATUTES/

REGULATION AND CODE OF VIRGINIA, INVOLVED

The Supremacy Clause of the United States Constitu-

tion, article VI, clause 2, provides:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every States shall be

bound thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.

Fifth Amendment of the United States Constitution

provides:

No person shall . . . be deprived of life, liberty, or

property, without due process of law; ....

Ninth Amendment of the United States Constitution

provides:

The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others

retained by the people.

The Due Process Clause of Section 1 of the Fourteenth

Amendment to the United States Constitution provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

18 U.S.C. § 4 - Misprision of felony.

Whoever, having knowledge of the actual commission

of a felony cognizable by a court of the United States, conceals

and does not as soon as possible make known the same to some

judge or other person in civil . . . authority under the United

States, shall be fined under this title or imprisoned not more

than three years, or both.

18 U.S.C. § 1001 - Statements or entries generally.

(a) [W]hoever, in any matter within the jurisdiction of

the executive, legislative, and judicial branch of the Government

of the United States, knowingly and willfully: (1) falsifies,

conceals, . . . a material fact; (2) makes any materially false,

fictitious, or fraudulent statement or representation; . . . shall be

fined . . . or imprisoned not more than 5 years, or both.

18 U.S.C. § 1204 - International parental kidnapping.

(a) Whoever. . . retains a child (who has been in the

United States) outside the United States with intent to obstruct

the lawful exercise of parental rights shall be fined under this

title or imprisoned not more than 3 years, or both.

(b) As used in this section -

(1) the term "child" means a person who has not

attained the age of 16 years; and

(2) the term "parental rights", with respect to a

child, means the right to physical custody of the child -

(A) whether joint or sole (and includes visiting rights); and,

(B) whether arising by operation of law, court order, or legally

binding agreement of the parties.

28 U.S.C. § 3- Vacancy in office of Chief Justice; disability

Whenever the Chief Justice is unable to perform the

duties of his office . . .. his powers and duties shall devolve upon

B--3

the associate justice next in precedence who is able to act

28 U.S.C. § 291(a)-Circuit judges

(a) The Chief Justice of the United States may, in the

public interest, designate and assiy 1 temporaril, —/ circuit

judge to act as circuit judge in another circuit upon the request

by the chief judge or circuit justice of such circuit.

28 U.S.C. § 292(d)-District judges

(d) The Chief Justice of the United States may designate

and assign temporarily a district judge of one circuit for service

in another circuit, either in a district court or court of appeals,

upon presentation of a certificate of necessity by the chief judge

or circuit justice of the circuit wherein the need arises.

28 U.S.C. § 455-Disqualification of Justice, Judge... .

(a) Any justice, judge, or magistrate of the United States shall

disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.

(b) He shall also disqualify himself in the following circum-

stances:

(1) Where he has a personal bias or prejudice concern-

ing a party, or personal knowledge of disputed evidentiary facts

concerning the proceeding; . . .;

(5) He...

(I) Is a party to the proceeding, .... ;

(iv) Is to the judge's knowledge likely to be a

material witness in the proceeding.

Virginia Uniform Child Custody Jurisdiction and Enforce-

ment Act

VA Code § 20-146.4. International application. —

A. A court of this Commonwealth shall treat a foreign country

B--4

as if it were a state of the United States for purposes of applying

this article and Article 2 (§ 20-146.12 et seq.)

B. Except as otherwise provided in subsection C, a child custody

determination made in a foreign country under factual

circumstances in substantial conformity with the jurisdictional

standards of this act must be recognized and enforced under

Article 3 (§ 20-146.22 et seq.) of this chapter.

C. A Court of this Commonwealth need not apply this act if the

child custody law of a foreign country violates fundamental

principles of human rights.

VA Code § 20-146.23. Enforcement under Hague Convention

Under this article a court of this Commonwealth may enforce an

order for the return of the child made under the Hague Convent-

ion on the Civil Aspects of International Child Abduction.

VA Code § 20-146.25. Temporary visitation. —

A. A court of this Commonwealth that does not have

jurisdiction to modify a child custody determination may issue

a temporary order enforcing: 1. A visitation schedule made by

a court of another state . . . .;

VA Code § 20-146.29. Expedited enforcement of child custody;

determination. —C. Upon the filing of a petition, the court shall

issue an order directing the respondent to appear in person with

or without the child at a hearing and may enter any order

necessary to ensure the safety of the parties and the child. The

hearing must be held on the next judicial day after service of the

order unless that date is impossible. In that event, the court shall

hold the hearing on the first judicial day possible. The court may

extend the date of hearing at the request of the petitioner.

VA Code § 20-146.35. Appeals. — An appeal may be taken

B--S

from a final order in a proceeding under this article in accor-

dance with expedited appellate procedures in other civil cases.

The Hague Convention on the Civil Aspects of Interna-

tional Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 19

I.L.M. 1501

Article 1

The object of the present Convention are-.... b) to

ensure that rights . . . of access under the law of one Contracting

State are effectively respected in the other Contracting States.

Article 2

Contracting State shall take all appropriate measures to

secure within their territories the implementation of the object

of the Convention. For this purpose they shall use the most

expeditious procedures available.

Article 5

For the purpose of this Convention-. .. . b)”right of

access” shall include the right to take a child for a limited period

of time to a place other then the child’s habitual residence.

Article 11

The judicial or administrative authorities of Contracting

States shall act expeditiously for the return of children. . . .

Article 19

A decision under the Convention concerning the return

of the child shall not be taken to be a determination on the

merits of any custody issue.

Chapter IV-Right of Access, Article 21

An application to make arrangement for organizing or,

B--6

securing the effective exercise of the rights of access may be

presented to the Central Authority of the Contracting States in

the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of

co-operation which are set forth in Article 7 to promote the

peaceful enjoyment of access rights and the fulfillment of any

conditions to which the exercise of those rights are subject. The

Central Authorities shall take steps to remove, as far as possible,

all obstacles to the exercise of such rights.

The Central Authorities, either directly or through

intermediaries, may initiate or assist in the institution of

proceedings with a view to organizing or protecting these rights

and securing respect for the conditions to which the exercise of

these rights may be subject.

Article 29

This Convention shall not preclude any person, . .. who claims

there has been a breach of . . . access within the meaning of . .

. Article 21 from applying directly to the judicial or administra-

tive authorities of a Contracting State, whether or not under the

provisions of this Convention.

The International Child Abduction Remedies Act

42 U.S.C. § 11601

(a) Findings. The Congress makes the following findings: . . . .

(4) The Convention on the Civil Aspects of International

Child Abduction, . . . establishes legal rights and procedures for

the prompt . . . securing the exercise of visitation rights. . . .

(b) Declarations

The Congress makes the following declarations:

(1) It is the purpose of this chapter to establish proce-

dures for the implementation of the Convention in the United

States.

B--7

(2) The provisions of this chapter are in addition to and

not in lieu of the provisions of the Convention. .. .

(4) The Convention and this chapter empower courts of

the United States to determine under the Convention and not

the merits of any underlying child custody claims.

42 U.S.C. § 11602. Definitions

For the purpose of this chapter-

(1) the term “applicant” means any person who, .. . , files an

application . . . for arrangements for organizing or securing the

effective exercise of rights of access pursuant to the Convention.

(4) the term “petitioner” means any person who, in accordance

with this chapter, files a petition in court seeking the relief under

the Convention;

(5) the term “person” includes any individual, institution. or

other legal entity or body;

(6) the term “respondent” means -any person against whose

interests a petition is filed in court, accordance with this chapter,

which seeks relief under the Convention;

(7) the term “rights of access” means visitation rights.

42 U.S.C. § 11603

(a) Jurisdiction of courts

The courts of the States and the United States district

courts shall have concurrent original jurisdiction or actions

arising under the Convention.

(b) Petitions

Any person seeking to initiate judicial proceedings

under the Convention . . . for arrangements for organizing or

securing the effective exercise of rights of access to a child may

do so by commencing a civil action by filing a petition for the

relief sought in any court which has jurisdiction of such action

and which is authorized to exercise its jurisdiction in the place

where the child is located at the time the petition is filed

(d) Determination of case

B--8

The court in which an action is brought under subsec-

tion (b) of this section shall decide the case in accordance with

the Convention .

(e) Burden of proof

(1) a petitioner in an action brought under subsection

(b) of this section shall establish by a preponderance of the

~ evidence-....

((B) in the case of an action for arrangements for

organizing or securing the effective exercise of

rights of access, that the petitioner has such nights.

42 U.S.C. § 11605. Admissibility of documents

With respect to any application to the United States

Central Authority, or any petition to a court under section

11603 of this title, which seeks relief under the Convention, or

any other documents or information included with such

application or petition or provided after such submission which

relates to the application or petition, as the case may be, no

authentication of such application, petition, document, or

information shall be required in order for the application,

petition, document, or information to be admissible in court.

Department of State, 51 Fed. Reg. 10,513 (1986), V. Access

Rights-Article 21.

C. Procedure for Obtaining Relief

Procedurally Article 21 authorizes a person

complaining of, or seeking to prevent a breach of access rights

to apply to the CA of a Contracting State in the same way as a

person seeking return of the child... .

Once the CA receives such application, it is to take all

appropriate measures pursuant to Article 7 to promote the

peaceful enjoyment of access rights and the fulfillment of any

conditions to which the exercise of those rights are subject. . . .

D. Alternative Remedies

In addition to or in lieu of invoking Article 21 to resolve

visitation-related problems, under Article 18, 29 and 34 an

aggrieved parent whose access rights have been violated may by

pass the CA and the Convention and apply directly to the

judicial authority of a Contracting State for relief under other

applicable laws.

INTERNATIONAL ABDUCTION CONCURRENT RESOLU-

TION 293 --PASSED BY HOUSE

WASHINGTON, D.C., May 23, 2000

House Concurrent Resolution 293, introduced by

Congressman Nick Lampson (D, Tx-9), Founder and Chairman

of the Congressional Missing and Exploited Children’s Caucus,

was passed 416-0 by the House on May 23", 2000. ‘The

concurrent resolution, which urges signatories of the Hague

Convention on the Civil Aspects of International Child Abduction

to uphold the agreement, was brought to the floor under

suspension.

Resolution 293

Whereas the Department of State reports that at any

given time there are 1,000 cases of American children either

abducted from the United States or wrongfully retained in a

foreign country;

Whereas many more cases of international child

abductions are not reported to the Department of State;

Whereas the situation has worsened since 1993, when

Congress estimated the number of American children abducted

from the United States and wrongfully retained in foreign

B--10

countries to be more than 10,000;

Whereas Congress has recognized the gravity of

international child abduction in enacting the International

Parental Kidnapping Crime Act of 1993 (18 U.S.C. § 1204), and

the Parental Kidnaping Prevention Act (28 U.S.C. § 1738a), and

substantial reform and reporting requirements for the Depart-

ment of State in the fiscal years 1998-1999 and 2000-2001

Foreign Relations Authorization Acts;

Whereas the United States became a contracting party

in 1988 to the Hague Convention on the Civil Aspects of

International Child Abduction (in this concurrent resolution

referred to as the ‘Hague Convention’) and adopted effective

implementing legislation in the International Child Abduction

Remedies Act (42 U.S.C. §§ 11601 et seq.);

Whereas the Hague Convention establishes mutual

rights and duties between and among its contracting states to

expedite the return of children to the state of their habitual

residence, as well as to ensure the rights of c-stody and of

access of the laws of one contracting state we effectively

respected in the other contracting states, without consideration

of the merits fo any underlying child custody dispute;

Whereas Article 13 of the Hague Convention provides

a narrow exception to the requirement for prompt return of

children, which exception releases the requested state from its

obligation to return a child to the country of the child’s habitual

residence if it is established that there is a ‘ grave risk’ that the

retum would expose the child to ‘physical or psychological

harm or otherwise place the child in an intolerable situation’ cr

‘if the child objects to being returned and has attainea ‘n age

and degree of maturity at which it is appropriate to take account

of [the child’s] views’;

B--11

Whereas the National Center for Missing and Exploited

Children (NCMEC), the only institution of its kind, was estab-

lished in the United States for the purpose of assisting parents

in recovering their missing children;

Whereas Article 21 of the Hague Convention provides

that the central authorities of all parties of the convention are

obligated to cooperate with each other in ors to promote the

peaceful enjoyment of parental access rights and fulfillment of

any conditions to which the exercise of such rights may be

subject, and to remove as far as possible, all obstacles to the

exercise of such rights;

Whereas some contracting states fail to order or enforce

normal visitation rights of parents of abducted or wrongfully

retained children who have not been returned under the terms

of the Hague Convention; an

Whereas the routine invocation of the Article 13

exception, denial of parental visitation of children, and the

failure by several contracting parties most notably Austria,

Germany, Honduras, Mexico, and Sweden, to fully implement

the Convention deprives the Hague Convention of the spirit of

mutual confidence upon which its success depends: Now,

therefore, be it Resolved by the House of Representative (the

Senate concurring), That Congress urges--

1) all contracting parties to the Hague Convention,

particularly European civil law countries that consistently

violate the Hague Convention such as Austria, Germany, and

Sweden, to comply fuily with

both the letter and spirit of their international legal obligations

under the Convention;

2) all contracting parties to the Hague

B--12

Convention to ensure their compliance with the Hague Conven-

tion by enacting effective implementing legislation and educat-

ing their judicial and law enforcement authorities;

3) all contracting parties to the Hague Convention to

honor their commitments and return abducted or wrongfully

retained children to their place of habitual residence without

reaching the merits of any underlying custody dispute and

ensure parental access rights by removing obstacles to the

exercise of such rights;

4) the Secretary of State to disseminate to all Federal

and State courts the Department of State’s annual report to

Congress on the Hague Convention compliance and related

matters; and

S) each contracting party to the Hague Convention to

further educate its central authority and law enforcement

authorities regarding the Hague Convention, the severity of the

problem of international abduction, and the need for immediate

action when a parent of an abducted child seeks their assistance.

U.S. Senate Judiciary Committee Confirmation Proceedings of

Nominee Justice John G. Roberts to position of Chief Justice

of the United States Supreme Court, August 1, 2005.

Question 20, Party to Civil Legal or Administrative Proceeding:

State whether you, or any business of which you are or

were an officer, have ever been a party or otherwise involved as

a party in any civil, legal or administrative proceeding, If so,

please describe in detail the nature of your participation in the

litigation and the final disposition of the case. Include all

proceedings in which you were a party in interest.

Response: | am a named party in Rodriguez, et al. v.

B--13

Nat'l Ctr. For Missing & Exploited Children, et al., 03-cv-00120

(D.D.C. filed Jan. 27,2002 appeal docketed, No. 055202 (D.C.

Cir. May 23, 2005). I was added as a named defendant-—along

with eight other judges on the D.C. Circuit, Chief Justice

Rehnquist, and several judges form other circuits—in plaintiffs

First Amended Complain, filed on March 8, 2005. On March

31, 2005, the District Court of the District of Columbia dismissed

the action with regard to the defendants in the original

complaint, and ordered the amended complaint stricken. A

notice of appeal was filed by Mr. Rodriguez on May 23, 2005.

According to published judicial opinions in the matter, Mr.

Rodriguez is a Virginia resident with ties to Colombia. He lived

in Colombia for mush of the period between 1987 and 1999 and

there fathered a child, Isidoro, in 1989. In 2001, Isidoro and his

mother visited Mr. Rodriguez in Virginia. Hear the end of the

visit, Mr. Rodriguez would not allow Isidoro to return to

Colombia and filed a petition to modify custody in Fairfax

County, Virginia court. Isidoro’s mother answered with a suit in

federal district court for the Eastern District of Virginia under the

Hague Convention on the Civil Aspects of International Child

Abduction; she won, and won again on appeal. Mr. Rodriguez

now alleges a conspiracy on the part of numerous federal and

private defendants to deprive him of his constitutional rights.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

ISIDORO RODRIGUEZ, AND ISIDORO RODRIGUEZ-

HAZBUN,

Petitioners,

VS.

THE NATIONAL CENTER FOR MISSING AND

EXPLOITED CHILDREN, et a/.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia

SUPPLEMENTAL BRIEF

Isidoro Rodriguez, Esq.

Counsel for Petitioners

THE LAW OFFICES OF ISIDORO RODRIGUEZ

2304 Farrington Avenue

Alexandria, Virginia 22303-1520

(703)317-0526: F-mail: isidoror@carthliok.net

PETITION FOR CERTIORARI FILED FEBRUARY 20, 2006

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

Cases:

Sarah Claudia Aragon Canter vs. Andrew Cohen, 4"" Cir.

No. 05-1609, March 21, 2006

Statute and Treaty:

Hague Convention on the Civil Aspects of International

Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 19

I.L.M. 1501

International Child Abduction Remedies Act, 42 U.S.C.A.

NR rs

Joint Concurrent Congressional Resolution ......... 3

Untied States Supreme Court Rule 15.8

DISCUSSION

Petitioners Isidoro Rodriguez (“Rodriguez-

Father”), and Isidoro Rodriguez-Hazbun (Isidoro-Son),

pursuant to S. Ct. Rule 15.8, files this supplemental brief

in support of their pending petition for writ of certiorari.

Rodriguez-father and Isidoro-Son, brings to the

Court’s attention the decision issued this past Tuesday by

the United States Court of Appeals for the Fourth Circuit

in, Sarah Claudia Aragon Canter vs. Andrew Cohen, 4" Cir.

No. 05-1609, March 21, 2006, regarding the limiied

jurisdiction of the federal courts and the mandate of

securing visitation pursuant to the International Child

Abduction Remedies Act ("ICARA"), 42 U.S.C.A. §§

11601-11611 (West 2005), and the Hague Convention

on the Civil Aspects of International Child Abduction

("Treaty"), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M.

1501.

In Canter, a citizen of Israel filed an action in the

federal court in Maryland seeking the enforcement of

custody and visitation rights. The District Court

dismissed the visitation claim for lack of jurisdiction. | }1«

Fourth Circuit affirmed, holding that the federal courts

are of limited jurisdiction (A-12)[reference to the page of

the 4" Cir. decision in the Appendix], and neither had

jurisdiction under the Treaty or ICARA, to effect the

merits of parental rights [see also discussion by dissent .ut

(A-24)], nor did the federal courts have jurisdiction to

consider a petition by one parent to secure visitation

rights against another.

Directly on point to the issue before this Court,

the Fourth Circuit held that to securing of visitation rights

was the responsibility of the Central Authorities under the

Treaty. The Fourth Circuit stated,

We note that our decision does not leave the

Appellant without a remedy for the exercise of her

access rights. The Convention does not prevent

the Appellant from filing a claim for visitation

in state court under the state’s visitation law

[citation omitted. Additionally, as discussed

above, the Appellant may file a petition with ~

the [Department of State and the National

Center for Missing & Exploited Children

(“Executive Branch”)] pursuant to the

Convention in order to address her access

claims. (Emphasis added) (A-23)

As the record shows this was exactly what Isidoro-

Son and Rodriguez-Father have sought to do since

January 27, 2003:

first, by seeking the issuance of a writ of

mandamus to the Executive Branch to compel their

compliance with their ministerial duty under Article 2,

11, 19, 20, 21, and 29 of the Treaty, 42 U.S.C. §

11601(a) & § 11602(1) and (7) of ICARA; as well as the

Congress’s Joint Concurrent Resolution 293 of May 23,

2000; and,

second, pursuant to VA Code § 20-146.25, .29,

and .35 of the Uniform Child Custody Jurisdiction and

Enforcement Act (“UCCJEA”), as well as the Treaty and

ICARA, by filing petitions with the Virginia Courts to

secure visitations.

However, in response the Executive Branch, as

well as both the Federal and Virginia Courts, for the past

three years have denied that the mandates of Congress

2

and the General Assembly of Virgin'a to secure visitation

existed. For example;

o Respondent-Defendants Stephen John Cullen

and Miles & Stockbridge who argued in Canter that the

federal courts were to secure visitation, are the same

Defendants in this action who for three years have argued

to both the federal courts and the Virginia Court that the

right to secure visitation does not exist;

o Judge Richard Roberts held that the NCMEC

was only a non-profit, and not the independent contractor

“instrumentality of government,” responsible to secure

visitation. But See Cantor, {the Fourth Circuit noted this

relationship of the Executive Branch (A-9)].

o Judge Richard Roberts and the Virginia Courts

stripping that Rodriguez-Father of his rights based on

Judge T.S. Ellis III ordering Isidoro-Son returned to the

Republic of Colombia.

On this latter point, relevant to Rodriguez-Fathe1

and Isidoro-Son efforts for the past three years to secure

visitation subsequent to Judge Ellis III order, the Fourth

Circuit confirmed that it was the District Court duty to

“craft a remedy within the context of the Convention”

to ensure the exercising of visitation rights. (emphasis in

the order)(A-20).

Thus Isidoro-Son and Rodriguez-Father have been

repeatedly deprived for over three years of their rights to

visitation in violation of 18 U.S.C. §§ 4, 371, 1001, and

1204, these governmental entities, employees, agents.

attorneys, have obstructed with Rodriguez-Father’s

parental rights.

CONCLUSION AND RELIEF SOUGHT

Based on the analysis in Canter, it is clear that

since his being shanghaied to Colombia on June 11,

2002,for over three years Rodriguez-father and Isidoro-

son have been illegally denied their right to visitation

under a Joint Custody Settlement Agreement entered in

August 1997, in violation of the Treaty, ICARA, and VA

Code. Furthermore, based on the analysis in Canter the

Executive Branch and Judicial Branches of Federal

Government, and the Virginia Courts, have acted outside

of their jurisdiction, as well as judicial and ministerial

capacity.

in summary, because it is alleged that due to on

going malfeasance in office there have been violations of

18 U.S.C. § 4, § 371, and §1001, by the obstruction with

Rodriguez-father parental rights in violation of 18 U.S.C.

§ 1204, this Court must grant certiorari.

Dated: March 26, 2006

Respectfully submitted,

Isidoro Rodriguez, E&q.

Attorney of Record for Petitioner

Admission to the Bar of

The United States Supreme Court 1992

THE LAW OFFICES OF ISIDORO RODRIGUEZ

2304 Farrington Avenue

Alexandria, Virginia 22303-1520

Telephone: 703.960.0225

BEST AVAILABLE COPY

A-2

Patricia Emily Apy, PARAS, APY & REISS, Red Bank, New

Jersey, for Appellee. ON BRIEF: Darragh L. Inman, MILES

& STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellant

OPINION

HARWELL, District Judge:

This appeal presents the question of whether the

International Child Abduction Remedies Act ("ICARA"), 42

U.S.C. §§ 11601-11610, confers jurisdiction upun tederal

courts to hear access claims.' Petitioner-Appellaiut, Sarah

Claudia Aragon Cantor, appeals the district court’s order of

April 18, 2005, dismissing her access claims. On May 23,

2005, the district court granted Ms. Cantor’s motion for

final judgment pursuant to Fed.R.Civ.P. 54(b) on the access

claims and for clarification of ruling on the alternative

access claim for one of her children referred to herein as

A.C. Specifically, when dismissing the acc« mr we

district court held that it did not have jurisdic! 0th

access claims under ICARA. For the following reasuis, we

affirm the decision of the district court.

Ms. Cantor and Mr. Cohen married in \

the time of the marriage, Ms. Cantor and M:

in Israel. During the marriage the couple had iv...

R.C., A.C. (the girls), 1.C., and Y.C. (the boy:

' Under ICARA, the term "rights of access" means visitation

rights. 42 U.S.C. § 11602(7).

A-3

three of whom are the subject of this appeal.* On July 16,

1998, the couple divorced in an Israeli Rabbinical Court

and a divorce decree was issued. The divorce decree

provided that Mr. Cohen would receive custody of A.C. and

1.C., the two oldest children, and Ms. Cantor would retain

custody of.Y.C. and R.C., the two younger children. The

divorce decree also granted visitation rights to Ms. Cantor.

Subsequent to the divorce decree, Ms. Cantor and

Mr. Cohen discussed the possibility of the girls being placed

with their mother and the boys with their father. Pursuant

to this discussion, on September 7, 1998, Ms. Cantor

relinquished custody of Y.C. to Mr. Cohen and took custody

of A.C. In June 1999, Ms. Cantor filed suit in the Israeli

Rabbinical Court, seeking changes to the first divorce

decree. In July 1999, Mr. Cohen was ordained as a Rabbi

and joined the United States Air Force Chaplaincy. Mr.

Cohen was scheduled to attend training school in the

United States. On January 2, 2000, a second divorce decree

was issued by the Rabbinical Court. The second divorce

decree formalized the living situation of the children that

Ms. Cantor and Mr. Cohen had earlier agreed upon by

granting Ms. Cantor custody of the girls, A.C. and R.C., and

granting Mr. Cohen custody of the boys, I.C. and Y.C. The

decree provided that Ms. Cantor would have temporary

custody of the two boys while Mr. Cohen attended training

school (from approximately January 2000 until September

2000).

On July 9, 2002, a third divorce decree was issued

by the Rabbinical Court. The third divorce decree provided

“A review of the background information in this matter

reveals no less than three orders issued by the Israeli

Rabbinical Court which involve the children.

A-4

that Ms. Cantor would retain custody over the two girls, and

that Mr. Cohen would retain custody over the two boys. The

third divorce decree also provided that the two boys and

A.C. would live with Mr. Cohen in Germany, where he was

stationed with the United States Air Force at the time. The

third divorce decree refers to A.C.’s stay in Germany as an

"extended visit." The third divorce decree also obligates Mr.

Cohen to finance half of the cost of Ms. Cantor’s visits to

Y.C., I.C., and A.C. in Germany, which were to occur every

two months. It also instructed Mr. Cohen to enable the

children to call Ms. Cantor three times a week, and to bring

the children to Israel to visit Ms. Cantor at least twice a

year. This divorce decree attributes the changed custody

situation to the security issues in Israel, the educational

needs of A.C., and the neurological and the psychological

needs of Y.C. However, the decree does not surrender

custody of A.C. to Mr. Cohen, nor does it provide a date for

A.C.’s permanent return to Israel.

In December 2002, Ms. Cantor and Mr. Cohen had

discussions about R.C.’s situation in Israel. Specifically, Ms.

Cantor told Mr. Cohen that R.C. missed her siblings and

that neither R.C. nor Ms. Cantor liked the school R.C. wa:

attending. As a result, Ms. Cantor and Mr. Cohen agreed

that R.C. would move to Germany to live with Mr. Cohen.

There is a disagreement among the parties as to when R.C.

was to return to Israel.

On March 2, 2004, Mr. Cohen was assigned a Drief

duty in Qatar and was told to report to the United Stites

upon completion of this duty. On April 17, 2004, Mr. Conen

completed his duty and reported to the United States. Mr.

Cohen initially resided with his four children in Pittsburgh,

Pennsylvania. On July 11, 2004, all four children moved

with Mr. Cohen to Silver Spring, Maryland. Ms. Cantor

continues to live in Israel.

A-5

On October 22, 2004, Ms. Cantor filed a verified

petition in the United States District Court for the District of

Maryland for return of the children and access to the

children. On November 12, 2004, Mr. Cohen filed a motion

to dismiss. On April 18, 2005, the district court found that

it lacked jurisdiction to hear Ms. Cantor’s access claims and

dismissed the complaint insofar as it requests access to I.C.

and Y.C. On April 26, 2005, Ms. Cantor filed a motion for

final judgment pursuant to Fed.R.Civ.P. 54(b) on the access

claims and for clarification of the district court’s ruling on

the access claim for A.C. On May 18, 2005, Ms. Cantor

timely appealed the district court’s decision dismissing the

access claims. On May 23, 2005, the district court granted

Ms. Cantor’s motion and certified that its decision

dismissing ali of the access claims, including the access

claim as to A.C., was a final judgment.

I].

The district court found as a matter of law that it

lacked jurisdiction to hear the access claims and dismissed

those claims. Regardless of whether the dismissal is

considered to have been entered under Fed.R.Civ.P.

12(b)(6) or Fed.R.Civ.P. 12(b)(1), we review the decision

de novo. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.

1997).

The district court’s Fed.R.Civ.P. 54(b) certification is

subject to an abuse of discretion standard. See Curtis-Wright

Corp. v. General Elec. Co., 446 U.S. 1, 10 (1980); see also

Braswell Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331,

1339 (4th Cir. 1993) (Luttig, J. dissenting) ("[w]Je may

disturb a trial court’s decision to enter judgment under

Federal Rule of Civil Procedure 54(b) ‘only if [we] can say

that its conclusion was clearly unreasonable.) (quoting

Curtis-Wright, 446 U.S. at 10). We find the district court’s

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decision to enter judgment under Fed.R.Civ.P. 54(b) in this

case was reasonable and not an abuse of discretion.

Accordingly, we possess jurisdiction and will review the

Appellant’s claims on the merits.

As stated above, this appea! presents the question of

whether federal courts are authorized to hear access claims

under ICARA. ICARA is the federal legislation which

implemented the Hague Convention on the Civil Aspects of

International Child Abduction, October 25, 1980, 19 I.L.M.

1501 (1980) (the "Hague Convention" or "Convention") in

the United States.

The Appellant argues the plain language of §

11603(b) of ICARA confers jurisdiction to federal courts to

hear access claims. Specifically, § 11603(b) states:

[a]ny person seeking to initiate judicial proceedings

under the Convention for the return of a child or for

arrangements for organizing or securing the

effective exercise of rights of access to a child may

do so by commencing a civil action by filing a

petition for relief sought in any court which has

jurisdiction of such action and which is authorized

to exercise its jurisdiction in the place where the

child is located at the time the petition is filed.

42 U.S.C. § 11603(b).

The Appellant argues this section of the statute

unambiguously allows "judicial proceedings” to secure the

"effective exercise of rights of access to a child" through “a

civil action." Jd. In support of this argument, the Appellant

points out-that 42 U.S.C. § 11603(e) establishes a burden

of proof with regard to rights of access. The Appellant also

notes that 42 U.S.C. § 11603(a) states that the "courts of

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the States and United States district courts shall have

concurrent original jurisdiction of actions arising under the

Convention."

To resolve the issue presented in this appeal we find

that we must begin by looking at the implementing

language in ICARA, 42 U.S.C. § 11601, et seq. We believe

the analysis does not begin at 42 U.S.C. § 11603, as

suggested by the Appellant, but instead at 42 U.S.C. §

11601. In the initial findings under § 11601(a) particular

emphasis is drawn to Congressional concern regarding

international abduction or wrongful retention of children.

Notably, this section does not mention visitation rights or

access rights until the last subsection, subsection 4, and

then only mentions these rights in the context of the

Convention. Specifically, the subsection describes that

"(t]he Convention . . . establishes legal rights and

procedures for the prompt return of the children who have

been wrongfully removed or retained, as well as for

securing the exercise of visitation rights." 42 U.S.C. §

11601(a)(4) (emphasis added).

Furthermore, subsection (b)(1) of § 11601, which

is part of Congress’ declarations, states that "[iJt is the

purpose of this chapter to establish procedures for the

implementation of the Convention in the United States."

42 U.S.C. § 11601(b)(1) (emphasis added). More

importantly, subsection (b)(4) of § 11601, which is also

part of Congress’ declarations, states that:

[t]he Convention and this chapter empower courts in

the United States to determine only rights under the

Convention and not the merits of any underlying

child custody claims.

42 U.S.C. § 11601(b)(4) (emphasis added).